D2.53 




Class _£^J_0_ 



Digitized by the Internet Archive 
in 2010 with funding from 
' The Library of Congress 



http://www.archive.org/details/confiscationofreOOdavi 



CONFISCATION OF REBEL PROPERTY. 



SPEECH 



ijrdWi ridsfl; Bin*., sfift 



OF 



HON. GARRETT DAVIS, OF KENTUCKY, 



IN THE SENATE OF THE UNITED STATES, 



APRII4 »a AND 23, 186a. 



The Senate having under consideration the bill (S. 
No. 151) to confiscate the property and free the slaves of 
rebels — 

Mr. DAVIS said: 

Mr. President: In future times the chapter of 
history that will be read with more of interest, with 
more of surprise, with deeper condemnation, and 
I will say even execration, than any that has yet 
been written, will be. the history of this rebellion, 
its origin and causes, remote and immediate, its 
progress, and the stupendous conflict of arms that 
Jt has produced. 

In ancient times, I have read from heathen my- 
thology, that in a war, either of rebellion or inter- 
national, among the heathen gods and demi-gods, 
there was one of them of gigantic proportions who 
was overcome and confined under Mount Vesu- 
vius for his punishment, and the Aible is, further, 
that whenever he turned over in the bed to which 
he had been consigned, that mountain would send 
forth its eruptions of molten lava. That fable is 
not an unapt illustration of the spirit of secession 
that has produced our present great difficulties. 
It is a spirit of gigantic proportions, and in its 
capacity and disposition for mischief and ruin it 
comes up to the fabled proportions of the ancient 
monster. Mr. President, I want that spirit of se- 
cession encountered, and I want it exterminated, 
annihilated. It will not do to confine it; it will 
not do to permit it to live and to give to it the [ 
power of locomotion, because so long as it does ; 
jive and has the faculty to move it will be moving 1 
in the work of mischief and ruin. That spirit, | 
nowhere in the United States where it has walked I 
abroad, is yctsubdued. Itexists in my own State, 
and although it is still and quiet, it has as much 
latent energy and as much disposition to work 
mischief as it has had since it made its appear- 
ance in the United States. I admit that the most 
effective and propercourseforencounteringit,for 
making war upon it, and for the subjugation of 



that spirit of secession is by arms in the field. In 
the depth and truth and sincerity of my desire to 
have the spirit of secession exterminated, I yield 
to no man in this nation; but while we are at that 
work of conquest for the purpose of maintain- 
ing the Union and the Constitution of the United 
States, I am utterly opposed to the sacrifice of that 
Constitution or any one of its principles. The po- 
sition of my State in tiiis great contest has here- 
tofore not been wholly satisfactory to me, and it 
is not now. I would have preferred that my na- 
tive State had planted herself squarely and fully 
upon her constitutional duties, and had performed 
them promptly at the call of the proper authori- 
ties when this rebellion broke out. From the force 
of circumstances, the Union men of that State, 
who are as true to the Union as any men that 
breathe the breath of life, could not in that man- 
ner perform their great duty, and they cannot now 
put the State completely, fully, and squarely on 
the plain platform of her duty. 

The position of my State and of myself has some- 
times been referred to in terms of condemnation 
in this Senate, and out of the Senate, in the pub- 
lic newspapers, and in private circles. In relation 
to that matter, I have only to say that, proudly 
conscious of the rectitude of my position and the 
position of the Union men I represent on that 
question, if these imputations or charges against 
them and myself are of the character that they 
or I am disloyal, they are basely and utterly false. 
If they are made in the spirit of envy — I will not 
say envy, but of resentment, of malevolence, and 
slander, I scorn and defy them and their authors, 
whether they are in this Chamber or out of it. 
If they are made in the heat of passion and for 
want of correct information, 1 pity and I despise 
the charge and its authors. I have never hesi- 
tated, nor intended to hesitate, to give my support 
and my vote, and, if necessary, my voice, to any 
constitutional measure to put down this war by 



\ 



J"^ f. \ 



:> 

^-:* 



^ 



\ 






^53 



force of arms, by the civil legislation within tlie 
pale of the Constitution. I believe it is the honest 
and the true purpose of the President so to con- 
duct the war, and in his conduct of it, so far as 
that conduct is to be indorsed by Congress, I in- 
tend to give him my full, unqualified, and hearty 
support. 

1 know, sir, that in times of war, and especially 
a war of rebellion, both the President and the 
armies of the United States have to perform many 
discretionary acts that are purely political, and 
that do not and cannot come under the supervis- 
«ion of the courts, but are referred wholly to the 
discretion of the functionaries charged with the 
exercise of those political powers. 1 know that 
in times of difficulty and great danger, when the 
life of the nation is imperiled, and when every 
effort of its true and honest citizens is required 
to save the nation and the Government, irregular 
power must necessarily be sometimes assumed. 
The assumptions of power, in such cases of exi- 
gence, I do not condemn; on the contrary, I give 
them my sanction and my ajjproval. But these 
discretionary powers that thus lead to irregular, if 
not unauthorized acts, appertain wholly to the 
President and to the generals and armies in the 
field; they do not belong to Congress. I have faith 
and confidence that our armies in the field, in num- 
ber, in prowess, and in militaryskill,are fully ade- 
quate to put down the rebellion and to assert the 
domination of the Constitution and the laws of the 
United States, and the authority of their officers in 
all the seceded States; but I do not believe that the 
contest is by any means over. On the contrary, I 
think there are now impending two conflicts in 
arms, the one at Yorktown, the theater where our 
liberty and independence in the war of the Revo- 
lution were in fact achieved, and the other on the 
Tennessee river, upon which hang very largely 
the continuance of this war. 

Mr. President, I have regretted, and still regret, 
that in devising measures to carry on this war to 
a quick and successful issue, there has ever been 
any manifestation of party organization in either 
House of Congress. I would that the dominant 
party now in power had acted upon a different 
principle, that they had sunk party and partisan- 
ship in one universal, united, and devoted service 
by every Union man to the cause of the country, 
the Union, and the Constitution, and that they 
had determined deliberately to exclude from the 
consideration of Congress and all of its proceedings 
any question calculated to produce the least dis- 
cordance or difference of opinion or views between 
the true and devoted Union men of every name 
and party, until the war was brouglu to a final and 
successful close. If they had chosen, in the ex- 
ercise of their discretion and of their duty to their 
country, to act on that principle, in my humble 
judgment it would have restricted the continuance 
of this war months, if not years; it would have 
saved the loss of the lives of thousands and tens 
of thousands of our true and gallant men by dis- 
ease in the camp and by slaughter in the field; and 
it would have saved the people of the United 
States the payment of millions and hundreds of 
millions in the cost of waging the war. 

I, in common with the Senator from Ohio, [Mr. 
Wade,] who addressed the Senate yesterday, 
condemn the attempt to reorganize and to place 
upon its feet again the old Democratic party dur- 



ing the pendency of this great national conflict; 
but I equally and more condemn the mere party 
organization of the party in power in calling their 
exclusive party caucuses and holding their coun- 
cils secretly, and determining upon the measures 
by which this war was to be waged and brought 
to its close. Sir, if one as humble as myself could 
have been invited to take counsel with the true men 
for the Union and the Constitution in the Senate 
for the purpose of putting down this rebellion, Oi 
chastising its authors, of subjugating the whole 
military power that has been brought to its sup- 
port, of compelling unconditional obedience to the 
Constitution and the laws, and inflicting condign 
punishment on the authors of this great crime and 
mischief, upon the principles of the Constitution 
and for the inviolate preservation of that great ark 
of American liberty, I would have gone into such 
a council with as pure a purpose and with as de- 
voted a heart as any man who calls himself Re- 
publican. But whenever other questions alien to 
the war, alien to the rebellion, alien to the honest, 
truthful, and undivided prosecution of the war for 
the purposes I have indicated, and for any mere 
political purposes whatever, had been introduced 
into the counsels of such a conclave, I would have 
entered my protest against the intrusion of such 
subjects, and if they had been persevered in, I 
would have taken my leave of that council, but at 
the same time would have maintained my position 
of unalterable devotion and fidelity to the Union, 
to my Government, and to my country. 

Mr. President, 1 do not believe that war alone 
is an adequate and full remedy for the present great 
disease of the nation. I know it is the chief, the 
principal, and the mostefficacious remedy, butin 
addition, and as ancillary to war, the Congress 
of the United States ought to pass measures to aid 
in this work of subjugating the rebellion and put- 
ting down opposition to the authority of theUnited 
States. In performing this duty, we have a chart 
and a guide. That chart is the Constitution of 
the United States. Congress, as the It.'gislative 
power of the nation, has no right to exercise, and 
ought not to attempt to exercise, any power but 
what is specially and by name delegated to it by 
the Constitution, or is necessary and proper for 
carrying some express power into execution. Sir, 
we are all sworn here to support the Constitution 
of the United States. The President tells us sol- 
emnly and truthfully that his oath to that effectis 
registered in heaven, and I suppose the oath of 
every Senator in Congress has the same inscruta- 
ble registry. For one, sir, whenever there is a 
proposition in the form of a bill or joint resolu- 
tion to become a law presented in this body in 
times of peace or war, [ intend, according to my 
judgment and my conscience, to try and test such 
a measure by the provisions of the Constitution. 
If, when reduced to that test, 1 come to the con- 
clusion that any measure whatever is in conflict 
with that instrument which I am sworn to sup- 
port, I will oppose it and vote against its adop- 
tion. I know that such a position and such a line 
of duty is derided, scoffed at, reprobated, and de- 
nounced in the Senate and out of the Senate; but 
I scorn such denunciations. If I were capable of 
yielding to them against my convictions, I should 
either be a base knave or a craven coward, in 
yielding to them, I should stain my soul with the 
turpitude and the crime of perjury; and any man 



who commits consciously any violation of the 
Constitution commits the same foul offense against 
his country and his God. 

Having made tliese preliminary remarks, I shall 
now proceed to the consideration of the measure 
under discussion; and that I may not be guilty of 
any injustice to it, or to the distinguished and able 
Senator who reported it, or the committee by whose 
order it was reported, I will read the entire bill, 
with the exception of the seventh section. It is 
entitled " A bill to confiscate the property and free 
the slaves of rebels." The amendments which 
the honorable Ser>atorfrom Illinois has proposed 
to the measure, according to my recollection and 
comprehension of them, do not materially change 
the sense of the bill or its effect, if it should be- 
come a law. I will therefore read the original 
bill. 

Mr. TRUMBULL. Here is a copy of the bill, 
as amended. 

Mr. DAVIS. I thank the honorable Senator 
for his courtesy. I will read the bill as it has been 
amended; 

Be it enacted, ^'c., That the property, real and personal, 
of every kind vvluttsoever, both corporeal and incorporeal, 
and including choses in action, and wheresoever situated, 
within the limits of the United States, bclongiirg to any 
person or persons beyond the jurisdiction of the same, or to 
any person or persons in any Stale or district within the 
United States, now in a state of insurrection and rchcllion 
against tlie authority thereof, so that in either ease tl>e ordi- 
nary process of law cannot be served upon them, who shall 
during the present rebellion be found in arms against the 
United States, or giving aid and comfort to said rebellion, 
shall be forfeited and confiscated to the United States; and 
as to all property which shall be seized and appropriated as 
hereinafter provided, such forfeiture shall take immediate 
effect upon the commission of the act of forfeiture, and all 
right, title, and claim of the person committing such act, 
together with the right or power to dispose of or alienate 
his property of any and every description, shall instantly 
cease and determine, and the same shall at once vest in the 
United States. 

Sec. 2. ^nd he it further enacted, That every person hav- 
ing claim to the service or labor of any other person in any 
State under the laws thereof, who during the present rebel- 
lion shall take up arms against the United States, or in any 
manner give aid and comfort to said rebellion, shall thereby 
forthwith forfeit all claim to such service or labor, and the 
persons from whom it is claimed to be due, commonly called 
slaves, shall, ipso facto, on the commission of the act of for- 
feiture by the party having claim to the service or labor as 
aforesaid, be disciiarged therefrom, and become forever 
thereafter free persons, any law of any State or of the Uni 
ted States to the contrary notwithstanding. And whenever 
any person claiming to be entitled to the service or labor of 
any other person shall seek to enforce such claim, he shall, 
in the first instance and before proceeding with the trial ol 
his claim, satisfactorily prove that he is and has been, during 
the existing rebellion, loyal to the Government of the Uni- 
ted States; and no person engaged in the military or naval 
service of the United States shall, under any pretense what- 
ever, assume to decide on the validity of tlie claim of any 
person to the service or labor of any other person, or to sur- 
render up any such person to the claimant. 

Sec 3. ^nd be it farther enacted, Tliat it shall be the 
duty of the President of the United States to make provis- 
ion for the transportation, colonization, and settlement in 
some tropical country, beyond the litnits of the United 
States, of such persons of the African race made free by the 
provisiojis of this act, as may be willing to emigrate, having 
first obtained the consent of the Government of said coun- 
try to their protection and settlement within the sanre, with 
all the rights and privileges of freemen. 

Sec. 4. ^nd be it further enacted. That it shall be the 
duty of the President "of the United States, as often as in his 
opinion the military necessities of the Army, or the safety, 
interest, and welfare of the United Slates in regard to the 
suppression of the rebellion, shall require, to order the seiz- 
ure and appropriation, by such officers, military or civil, as 
he may designate for the purpose, of any and all property 
confiscated and forfeited under and by virtue of this act, 
situated and being in any district of the United States be- 



yond the reach of civil process in the ordinary course ol 
judicial proceedings by reason of such rebellion, and the 
sale or other disposition of said property, or so much of it 
as he shall deem advisable. 

Sec 5. uSnd be it further enacted. That it shall be the 
duty of the officers so designated to make to the President 
full reports of their proceedings under s\ich oiders, which 
report shall be filed in the otiice of the Secretary of the 
Treasury ; and all moneys received on the sale or rent or 
use of the confiscated property of any person aforesaid shall 
be deposited in the United Slates Treasury. 

Sec 6. Jind he it further enacted. That for the purpose 
of enforcing the forfeiture specified in the first section oi 
this act of property situate and being in loyal States or dis- 
tricts in which the ordinary course of judicial proceedings 
is not obstructed by the rebellion, proceedings in rem may 
be instituted, in the name of the United States, in any dis- 
trict court of the United States, within which the estate or 
property so forfeited, or any part thereof, may be found, 
wliich proceedings sliall conform, as nearly as may be, to 
proceedings in prize cases, or to eases of forfeiture arising 
under the revenue laws ; and in all cases the property con- 
demned, whether real or personal, shall be sold, and the pro- 
ceeds deposited as provided in the fifth section of this act. 

It will be observed from the reading of the bill 
that it creates two classes of persons whose prop- 
erty shall be forfeited. One class is composed of 
those who are out of the United States, or who 
are within the States now in rebellion, and in such 
position that the ordinary process of the courts 
cannot be served upon them. It then provides by 
different modes of proceeding for all that class of 
persons in arms in the rebellion, or giving it aid 
and comfort, who can be found within the loyal 
States, or in such position in the United States 
that the ordinary process of law can be served 
upon them. The white population of the disloyal 
States amounts to 5,450,831. The slaves in the 
same States amount to a fraction above the num- 
ber of 3,500,000. By the last census, there are 
3,953,587 slaves in the United States. There are 
3,500,000 in the disloyal States — in the States that 
have seceded — and about 450,000 in the States that 
are yet loyal, including the western portion of the 
State of Virginia. I assume that there are as many 
disloyal men in the loyal States as there are loyal 
men in the seceding States; and I have no doubt 
that the number of disloyal men in the loyal States 
is larger than the number of the Union men in the 
seceding States. The result, then, is, that the bill 
takes from a number of white people equivalent 
to the entire white population of the loyal slave 
States a slave population equivalent to the entire 
slave population of the disloyal States. It not 
only takes their slave property, but it takes all the 
property that they own. What is the aggregate 
amount of the property of the disloyal States, ac- 
cording to the census tables? It is 1^6,792,585,742 
in amount. The property of the loyal slave States 
amounts to ^1,983,702,055; so that the aggregate 
amount of property in the southern States that is 
subject to be acted upon by the provisions of this 
bill, if it becomes a law, will affect upwards of 
six millions of people, and will deprive them of 
property of the value of $4,808,883,687— nearly 
five thousand millions of dollars. Now, sir, I ask if 
this measure in its proportions is not as gigantic 
as the insurrection and the war itself? Was there 
ever in any country that God's sun ever beamed 
upon a legislative measure involving such an 
amount of property, and such numbers of prop- 
erty holders? 

I will take another view of this subject. The 
surplus production of the States that have seceded, 
amounts annually to between five hundred and six 
hundred millions of dollars. Of ihisjarge surplrs 



at least one hundred and fifty millions are distrib- 
uted to the loyal and free States for cereal grains, 
for meats, for stock, for mules, horses, and man- 
ufactured articles of various kinds. My own State 
of Kentucky finds a market annually in the south- 
ern States, growing out of tiie productions of their 
slave labor, to the amount of eight or ten millions 
of dollars, and the free States in the same market 
find a sale for their articles of natural or artificial 
production to the amount of at least one hundred 
and fifty millions of dollars. Look at tiie great 
grain-growing regions of the West, the Egypt of ■ 
America in fertility and production. Where do 
they find their principal markets for their corn and 
their meats .' Where do Indiana, Missouri, Ohio, 
Kentucky, and every other portion of the United 
States that produces and sells stock find a market 
for their stock? They find it in the same sunny 
South, producing cotton and sugar. Where do 
Chicago, Cincinnati, and the other manufacturing 
points of plows, agricultural implements, and all 
the machinery by which crops are produced and 
harvested, find their market for the sale of their 
manufactured articles? It is in the South. Where 
does New England, where does Massachusetts, 
find the principal market for her boots and her 
shoes, her coarse woolens, her coarse cottons, and 
her ice, even ? It is in the South. 

I intend to maintain and shall endeavor to show 
that this great and enriching market for the loyal 
and free States will be cut off by this iniquitous 
measure — for I so denominate it — if it should be- 
come a law. The great devotees to labor and 
industrial pursuits in the field of agriculture, and 
in the workshops, who find their markets and the 
rewards of their toil and of their labor and of their 
skill in the South, will rise up in earnest protest 
against any such measure as this. Their voice 
will be heard before long in this Chamber. It will 
be heard resounding throughout this nation; and 
it will be heard in a majesty and strength that will 
command obedience to it, and it will repress and 
put down such wholesale measures of confisca- 
tion, of injustice, of oppression, and iniquity. 

I shall now proceed to a legal, constitutional 
examination of the provisions of this bill, and I 
shall endeavor to do it as clearly, as methodically, 
and aa succinctly as I can. 

The first question is, has Congress the power, 
to pass the measure under consideration, and if it 
has the power, from whatsource does it derive it? 
I maintain thatfor Congress there is but one source 
of power, and that is the Constitution of the Uni- 
ted States; that if Congress has any power to pass 
this bill it derives it by express delegation, or by 
necessary and proper implication, from the Con- 
stitution of the United States; and it can derive it 
from no other source. If the power is not given 
there, it is given nowhere; it does not exist; and 
an attempt to exercise it would be an act of usurp- 
ation on the part of Congress which any free citi- 
zen of the United States would have the right to 
resist by all the means and force which he could 
command, at his peril, abiding thejudgmentof the 
courts of the United Stales upon the question of 
the legality of his position. I assume that the law 
of nations, even if it was adopted by the express 
language of the Constitution, or by necessary im- 
plication, confers upon Congress no power what- 
ever to pass this bill. I assume, furthermore, 
that if the body of international law was expressly 



adopted by a clause in the Constitution, or by 
necessary implication, every one of the principles 
and provisions of that law that stood in conflict 
with any written provision of the Constitution 
would ftill before its paramount power, and in the 
United States would have no legal effect whatever. 
I will now read from two approved authors clauses 
of international law that bear upon the questions 
arising in this bill. I will read them consecutively: 

" Nations composed of men, and considered as so many 
free persons living togctlier in a state of nature, are natu- 
rally eqnal, and inherit from naune the same obligations 
and rights. Power or weakness d6es not, in this respect, 
produce any dilierence. A dwarf is as ninch a man as a 
giant: a small republic is no less asovereign State than the 
most powerful kingdom. 

" By a necessary consequence of that equality, wliatever 
is lawful for one nation is equally lawful for all other na- 
tions, and whatever is unjustifiable in one is equally so in 
all others." — ValteVs Law of Nations. 

" The wliole international code is founded upon recipro- 
city. The rules it prescribes are observed by one nation, 
in confidence that they will be so by others." — WhratonH 
Elements of National Larr, p. 421. 

Thus reads Wheaton, one of the most recent 
and approved writersupon international law. The 
question then arises, is the United States now in 
a state of war ? It is, in the inost general and uni- 
versal acceptation of the term. It is engaged in 
a war to put down insurrection and rebellion at 
home, but it is not engaged in a war according to 
the distinction and the understanding of interna- 
tional law and according to the rights which that 
code of law assures to belligerents. The mostgen- 
eral definition of war is, the state of a nation in 
which it is pursuing its right with force: 

" ./V nation is a unity, an entirety, a consequence of which 
is, that when its sovereign power declares war against an- 
other nation, it is understood that the whole nation declares 
war against that other nation ; for the sovereign power rep- 
resents the nation, and acts in the name of the whole so- 
ciety : and it is only as a body, and in her national charac- 
ter, that one nation has to do witli another. Hence these 
two nations are enemies, and all the subjects of the one are 
enemies to all the subjects of the other. In this particular, 
custom and principles are in accord." — Vattel, p. 391. 

" All the members of the enemy State may lawfully be 
treated as enemies in apublic war." — JVheaton's Elements 
of National Law, p. 491. 

'• From the moment one State is at war with another, it 
has, on general principles, a right to seize on all the ene- 
my's property, of wlialsoever kind, and whersoever found, 
and appropriate the property thus taken to its own use, or 
to the use of the captors." 

But by the modern usages of nations, which 
have now acquired the force of law — 

'• Temples of religion, public edifices devoted to civil pur- 
poses, monujnents of art, and repositories »r science, are 
exempted from the general operations of war. Private prop- 
erty on land is also exempt from confiscation, with the ex- 
ception of sucli as may become booty in special cases, 
when taken from enemies in the field, of in besieged towns, 
and of military contributions levied upon the inhabitants of 
the hostile territory. This exemption extends even to the 
case of an absolute and unqualified conquest of the enemy's 
country." — Ibid., p. 431. 

"The sovereignty of a nation is external or internal. 
External sovereignty consists in the independence of one 
political society in respect to all other political societies. 
It is by the exercise of this branch of sovereignty that the 
international relations of one political society are main- 
tained in peace and in war with all otherpolitical societies. 
The law by which it is regulated has, therefore, been called 
external public law — droit public externa — but may more 
properly be termed international law." — Ibid., p. 29. 

Wheaton says: 

" Sovereignty is acquired by a State either at the origin 
of the political society of which it is composed or when it 
separates itself from a community of which it previously 
formed a part, and on which it was dependent." — P. 30. 

"This principle (sovereignty) applies as well to internal 



as to external sovereignty. But an important condition is 
to be noticed in this respect between tliese two species of 
sovereignty. Tlie internal sovereignty does not, in any de- 
gree, depend upon its recognition by other States. A new 
State springing into existence does not require tlie recog- 
nition of other States to contirm its internal sovereignty. 
The existence of the State de facto is sufficient, in this re- 
epect, to establish its sovereignty dc jure. It is a State l>c- 
cause it exists." 

But it " must have declared and shown its abil- 
ity to maintain its independence." 

'• Until the independence of the new State has been ac- 
knowledged, either by the I'oreign State where hs sover- 
eignty is brought into question, or by the Government ol 
tiie country of which it was a province, courts of justice 
and private individuals are bound to consider the ancient 
state of things as remaining unaltered."' — Wheaton's Prin- 
ciples of the Law of Ifations, page 3o, and authorities there 
cited. 

Vattel says, in treating of civil war: 
" It is very evident tiiat the common laws of war, those 
maxims of humanity, moderation . and honor wiiieh we have 
already detailed in this work, ought to be observed in a civil 
war." 

And he argues that this is a necessity to prevent 
retaliation, and to prevent the war from becom- 
ing cruet and savage. He says further: 

'' When the sovereign has subdued the opposite party, 
and reduced them to sue for peace, he may except from the 
amnesty the authors of tlie disturbance, the heads of the 
party; Ue may bring them to a legal tribunal, and punish 
them if they be found guilty. He m.ay act in this manner, 
particularly on occasion of those disturbances in which the 
interests of the people are not so much the object in view- 
as tlie private aims of some powerful individuals, and which 
rather deserve tlie appellation of revolt than of civil war." 

That is particularly the case in the present rebel- 
lion against our Government: 

'•But when a nation becomes divided into two parties 
absolutely independent, and no longer acknowledgins a 
common superior, the State is dissolved, and the war be- 
tween the two parties stands on the same ground in every 
respect as a public war between two different nations.'" — 
Pages 4-35, 4-26, 427. 

These are authorities of the highest reputation, 
and the principles laid down by them in the pas- 
sagas which 1 have read are, in substance: all 
nations are equal, and the same rights and obliga- 
tions devolve upon them. International laws are 
those rules which define the rights and obligations 
and regulate the intercourse and relations of na- 
tions with each other, and which have their au- 
thority from the uniform recognition and observ- 
ance of them by the civilized world. The rights 
and obligations established by international law 
are perfectly reciprocal, and whatever is right and 
lawful or wrong and unlawful, when claimed or 
done by one nation, is equally so when claimed 
or done by all other nations. Nations being equal 
and independent, and there being no corumon arbi- 
ter or authority to decide their disputes, every 
nation has a perfect right to go to war to assert its 
rights or to redress its wrongs, ai;d of the suffi- 
ciency of the cause each nation for itself is the 
sole and exclusive judge; and, consequently, the 
laws of nations do not and cannot make any dis- 
criminations whatever between just and unjust 
international wars. 

When national law treats of war generally, and 
without language defining some other kind of war, 
it means war between two or more nations. War 
is the state when one nation is pursuing another 
nation for its right with force. A nation is a unity, 
an entirety, and consequently when the war-mak- 
ing power of one nation declares or wages war 
against another nation, all the citizens and sub- 



jects of both nations are considered and treated 
as at war with each other. All the relations of 
war and peace between one nation and another 
nation are in their national character, as individ- 
ual bodies, and they have no rights, obligations, 
or relations whatever represented by their individ- 
ual subjects or citizens; and when two nations are 
at war with each other, all the subjects and citi- 
zens of both are mutually enemies. Formerly, 
when two nations went to'war, each had the right 
to seize immediately all the property of whatso- 
ever kind and wheresoever found of the other, 
or its subjects or citizens, and to appropriate it to 
its own use, or to the use of the captors. But by 
modern international law, temples of religion, 
public edifices devoted to civil purposes, monu- 
ments of art, repositories of science, and private 
property on land , except in cases of extreme stress 
and necessity and excepting such as may be taken 
from enemies in the field or besieged towns and 
contributions upon the inhabitants of a hostile 
country, are exempt fijom confiscation, even after 
the permanent conquest of the country by the 
enemy. 

These principles were established for and apply 
only to sovereign and independent States, and 
never to a nation and any of its rebellious parts 
or people until they have declared their independ- 
ence, and demonstrated their ability to maintain 
it. They then have established their internal sov- 
ereignty; and being absolutely independent, and 
having formed a separate government for them- 
selves, they are a State, or nation, distinct from 
the oneof which they were previously a part; and 
all international law applies mutually and equally 
to them both. But in all the intermediate stages 
from the first revolt to the consummation of the 
revolution, although civil war may rage violently 
and widely between the contending parts, yet they 
still form but one State; and international law, 
which applies to nations each as a unity and en- 
tirely, has no more application to them thanit had 
before their struggle began. The part which ad- 
heres to and is represented by the Governitient, 
has against the other no belligerent international 
rights. It cannot, under the laws of nations, con- 
fiscate or forfeit the property of the other, or ac- 
quire by right of conquest the portion of the coun- 
try inhabited by it, or pursue toward it any other 
line of conduct, having its rightfulness and au- 
tiiority in those laws. Those laws are reciprocal; 
they devolve the same rights and obligations upon 
all the parties in any war to which they are appli- 
cable. They can be applicable only to nations 
who are independent and equal, and are wholly 
inappropriate to the Government and the insur- 
gents in all cases of rebellion. 

In our own case all the rebels are traitors and 
criminals, and they cannot put in operation or 
claim a single belligerent right until they shall 
have demonstrated by the success of their arms, 
their ability to maintain their independence. Be- 
fore this is done, however discordant and warring 
our condition may be, all the people of the Uni- 
ted States are together bul one nation, and are so 
to be treated by all others; and the parts or peo- 
ple in revolt, although they may have declared 
their independence and formed a separate govern- 
ment for themselves, cannot be entitled to any 
rights or privileges from the laws of nations. 
Hence all the confiscations, forfeitures, and seiz- 



6 



ures, made or authorized by the rebels of the 
southern States, are wrongs and outrages without 
rigiu, law, or excuse; and all their deprivations 
of life of human beings, whether by the judgment 
of pretended civil or military-courts, or in battle, 
are flngrant murders; and their authors are sub- 
ject to the same liabilities, pains, and penalties of 
wrong-doers and murderers generally, with deeper 
execration for more enormous guilt. 

If these rebels were made responsible by inter- ' 
national law, they would be entitled to its im- 
munities by its principle of mutuality and equal- 
ity among belligerents, and could properly and 
righttlilly do, against the loyal people of the Uni- 
ted States, every act for the seizure, confiscation, 
and a|ipropriation of property or the destruction 
of life which our Government could lawfully 
authorize to be done against them. But in carry- 
ing on the war, both th6y and the United States 
are suliject to tlie usages and modes of war, which 
have been established by the principles and prac- 
tices of civilized and Christian nations, that are 
alike Applicable to all wars, whether they be in- 
ternational or civil and domestic. Neither party 
can murder or enslave prisoners, and both must 
spare the vanquished when they have laid down 
their arms. Neither party can use poisoned 
weapons, or poison water and food; and both 
musi observe flags of truce, armisticee, cartels for 
the exchange of prisoners, and all the principles 
of humanity, honor, and good faith, so far as the 
pi'actices of nations in modern times have invoked 
tliem to mitigate the horrors of all war. Dur- 
ing the pendency of the conflict, the United States 
are restrained by these principles and practices 
from all civil or military executions of the rebels 
for the purpose of obviating bloody retaliations, 
aiid preventing the war from becoming cruel and 
ferocious in its character. But when the United 
States have subjugated the rebels, and freed all 
loyal men from their powerand revenge, its courts 
may then bring to trial and punishment such of 
them as can be arrested, according to the forms 
and sanction of their laws, and the discretion of 
their proper authorities. 

But neither the existing rebellion in our coun- 
try, nor the domestic wars of any other country, 
are the subjects or the objects of international 
law or of the rights and duties established by it. 
Such wars are domestic concerns, appertaining 
exclusively to each nation afflicted by them, and 
for which each has the perfect and unquestionable 
right to prescribe any means, mode, laws, and 
punishment to quell it, according %o its sovereign 
will, so that they do not outrage and shock the 
universal laws of humanity. Congress has never 
passed any law or the United States courts made 
any decision in conflict with those principles. The 
United States have acted upon this general prin- 
ciple in creating and organizing all the forces and 
machinery to execute their laws, to suppress in- 
surrections, to crush treason and punish traitors, 
and to protect the States against invasion and do- 
mestic violence; and these forces and this ma- 
chinery are embodied in the Constitution and laws 
of Congress, and are distributed among the three 
departments of the Government. 

Mr. President, the Supreme Court, in the cele- 
brali-'d case of the Unitf'd States vs. Brnwn, and 
in the cases of the Sally, and the Rapid, and the 
Venus, decided that the property proceeded against 



was enemy's property or guasienemy's property; 
that it did not belong to a citizen or any number 
of citizens in a state of rebellion or insurrection, 
but that it was the property of citizens of a foreign 
and independent nation, and as such was liable to 
be proceeded against and condemned by the prize 
and other national law. The particular question 
decided in the case of Brown was this: after the 
.declaration of war in 1812, some property belong- 
ing to a subject of England was brought within 
the United States, and the most difficult question 
in theease was, whether it was property still afloat 
or on land, and the Supreme Court decided this, 
and this only, that that property was subject to 
confiscation, but that an act of Congress was ne- 
cessary to give eflect to the confiscation. 

Mr. COLLAMER. Will the gentleman suffer 
me a moment to remind him that in the Brown 
case the question was, whether property of the 
enemy, which was in the country when the war 
was declared, could be seized as prize of war and 
subject to confiscation ? They decided that it could 
not be without an act of Congress. That was the 
question. 

Mr. DAVIS. That docs not vary the principle 
I am contending for. 

Mr. COLLAMER. Not at all. I only wanted 
to put the gentleman right as to the true state of 
the case. That was the question. 

Mr. DAVIS. The other question arose inci- 
dentally, and was argued at great length, whether 
the property was afloat or on land 

Mr. COLLAMER. Yes, sir. 

Mr. DAVIS. There being a different rule of 
law in relation to confiscation of property upon 
the sea or afloat and property on land. But the 
|)rinciple there decided, and upon which I rely, 
is simply this: that the property declared to be 
subject to confiscation by act of Congress, was 
the property of an enemy then at war with the 
United States, and therefore, under international 
law, was profierly subjected to confiscation by an 
act of Congress. In the other cases, the principle 
decided was that if an American citizen is domi- 
ciled in a foreign country, against which our Gov- 
ernmentdeclares war, at the time of the declaration 
of war, and he puts iiimself in motion to return 
with his [)roperty to his country within reason- 
able time, his property is exempt from capture 
and confiscation; but if he puts his property afloat 
on the ocean for the purjiose of trade, or if he is 
absent himself from the enemy country and sends 
to the enemy country to have his property brought 
to the United States, in both states of the case the 
Supreme Court decides that the property assumes 
the character of enemy property, as though it be- 
longed to the subjects of the nation with which we 
are at war, and«is just as much subject to capture, 
prize, and condemnation as if it were in fact and 
bona fide enemy property. So neither these cases 
nor any other cases that have been decided by 
the Supreme Court touch the question now under 
consideration and involved in the bill. Every act 
of Congress that lias made provision for capture, 
for confiscation , for prize, and all the cognate acts, 
are made in rchirion to a. state of war between the 
United States and other nations, and in relation 
to property thai is owned by tlic suljiuMs or citi- 
zens of oliier nations, or in relaiKui lo property 
which- is (;i(asi owned by the subji-ct.s or citizens 
of other nations. The question how far Congress 



by law can confiscate the property of a citizen, 
loyal or disloyal, except in cases of violation of 
revenue laws, to which I will refer presently, is 
wholly unacted upon by Congress in the passage 
of any law or by the United States courts in their 
decisions,accordin2; to myreadinu; and researches. 

The Governmen't of the United States is more 
excellent than all others, not only for its free and 
popular character, but also for its written and 
stable Constitution, which clearly enumerates, 
defines, and limits all the primary and principal 
powers of the Government, but separates them 
into three departments, and provides for the same 
number of coordinate and independent bodies of 
magistracy to execute the powers assigned to each . 
In this mode, it not only provides against a dan- 
gerous concentration of power in the same hands, 
but creates mutual checks and balances to prevent 
the usurpation or abuse of power. It is the fun- 
damental law of our Government, and it is the bond 
of union which binds the States together. It is 
perpetual, and also immutable, except in the de- 
liberate and difficult mode which it prescribes for 
itsown alteration. The American people, aclingby 
States, ratified and established it, and by its own 
provisions made it, the laws of Congress, and the 
treaties of the United States, then, or to be there- 
after made, the supreme law of the land, and the 
judges of every Slate to be bound thereby, any thing 
in their constitutions and laws to the contrary not- 
withstanding; andrequired the Senators and Rep- 
resentatives of the United States, the members of 
the several State Legislatures, and all executive 
and judicial officers, both of the United States and 
of the several States, to be bound by oath or affirm- 
ation to support it. Its authority is not only para- 
mount, but it is continual, uniform, and uninter- 
rupted; and there is no power that can suspend 
or dispense with it, or any part of it, except Con- 
gress may suspend " the privilege of the writ of 
habeas corpus, when in' cases of rebellion or inva- 
sion the public safety may require it." Through- 
out all the times of war and peace, its stable and 
fixed authority and operation are withougpause 
or variableness. Its great founders never intended 
that it should be thrown into a state of catalepsy 
by the shock of war, or they would have so writ- 
ten one of its provisions. They were too wise not 
to know that its protection was more needed for 
private right and public liberty in the midst of the 
license and violence of war than in the passionless 
'calm and security of peace. They intended that 
in our country it should refute forever the pusil- 
lanimous concession of Cicero, which had been 
so long received by the world as an aphorism, 
" Leges silent inter arma." It is the bulwark of 
American civil and religious liberty, and it is only 
the enemies of both who seek its destruction by 
open assault or by Machiavelian machinations. 
When it falls, the liberties of our country will be 
buried under its ruins. 

This Constitution, in its own provisions, is all 
the law, or is the source and authority of all the 
laws which apply to the United States as a nation. 
Congress may pass laws at large and rn detail, or it 
may, by general language, adopt other bodies of 
law, as the common law, the civil law, international 
law, the maritime law, the mercantile law, and 
martial law. But whether any or all those bodies 
of law be adopted by Congress or the Constitu- 
tion, in their whole or part, each and every prin- 



ciple of the bodies of the law so adopted, in con- 
flict with any express principle or provision of the 
Constitution of the United States, would fall before 
the paramount authority of that Constitution, and 
be of no validity whatever in the United States. 
If such conflicting principle or provision of any 
bodies of law before referred to, was, in totideni 
verbis, written in an act of Congress, no sensible 
man would controvert the position that it would 
be void and of no effect; and it being provided for 
in general and indefinite language, would add to 
the force of that truth. Many powers of Govern- 
ment, arising by implication under the Constitu- 
tion, upon the principle that they were necessary 
and proper to carry into execution expressly dol- 
egated powers, would give rise to a diflference of 
opiniqn among able and good men. But there can 
be no sach conflict where any power sought to be 
implied is expressly negatived by or plainly in- 
cotisistent with a written provision of the Consti- 
tution. That the implied right or power mu«t 
yield to that which is expressed, is the universal 
rule in giving construction to all written instru- 
ments; and especially it is so in construing the 
Constitution, which the sovereign power of this 
country has declared and established to be " the 
paramount law of the land." 

The Constitution has provided for its own pro- 
tection, preservation, and perpetuity, and for that 
of the Government and the country. The prin- 
ciples that all laws, State or national, in conflict 
with it, are of no validity, and that all officers, 
national or State, shall swear to support it, form 
one of its great defenses. But it has other guards 
and protections in otherexpress provisions. They 
are distributed among the three departments of 
the Government, so that each body of its magis- 
tracy has a part of the duty and responsibility of 
this defense. Our ancestors were too sagacious, 
too jealous of power, and too true to liberty, to 
intrust this wholly to one man, or even one body 
of magistracy. I will read a number of those pro- 
visions of the Constitution which are most appli- 
cable to the present condition of the. country, and 
by authority of which the existing rebellion is to 
be subdued: 

" The Congress shall have power to lay and collect taxes, 
duties, imposts, and excises, to pay the debts and provide 
for the common defense of the United States;" 

" To borrow money on the credit of the United States ;" 

"To define and punish piracies and felonies committed 
on the high seas, and offenses against the laws of nations;" 

" To raise and support armies," &c. ; 

" To provide and maintain a navy ;" 

•" To make rules for thegovernment and regulation of the 
land «nd naval forces;" 

" To provide for calling forth the militia to execute the laws 
of the Umon,sui)pressiusurrections,and repel invasions;" 

'•To provide lor organizing, arming, and disciplining the 
militia, and for governing such part of them as may be em- 
ployed in the service of the United States," &c. ; 

"To make all laws which shall be necessary and proper 
for carrying into execution the foregoing powers, and all 
other powers vested by this Constitution in the Govern- 
ment of the United States, or in any department or ollicer 
thereof." 

" The Congress shall have the power to declare the puj^ 
ishment of treason ; but no attainder of treason shall work; 
corruption of blood or forfeiture, except during the lile of tU.e 
person attainted." 

"The United States shall guaranty to every State j&thia 
Union a republican form of government, and shall pfolect 
each of them against invasion, and on applicatiou of tlie- 
Legislature, or of the Executive, (when the Legislature caii-- 
iiot he convened,) against domestic violence." 

" The I'resident shall be(7ommander-in-Chiefofthe Army 
and Navy of the United States, and of the uvUitia of the- 



8 



several States when called into the service of tlie United 
States." 

♦' The President shall have power to fill up all vacancies 
that may happen during the recess of the Senate, by grant- 
ing commissions wliich shall expire attheendof tlieir next 
session." 

" He may, on extraordinary occasions, convene both 
Housesof Congress, or either of them ;" "he shall take care 
that the laws be faithfully executed," &c. 

"The judicial power of the United States shall be vested 
in one Supreme Court, and in such inlerior courts as Con- 
gress may from time to time ordain and establish." 

" The judicial power shall extend to all cases in law and 
equity arising under this Constitution, the laws of the Uni- 
ted States," &c. 

These clauses of the Constitution embody and 
confer all the power and authority that is pos- 
sessed by the Government of the United States to 
deal with the present rebellion. The duty and 
power of self-defense are both devolved upon that 
Government, but that self-defense must be made 
by the means and in the mode prescribed by the 
Constitution, as I have read from it, and the laws 
of Congress in conformity to it. The adoption of 
any otiier mode or means would be a usurpation 
of power which every citizen could rightfully re- 
sist. Congress has power to declare war against 
foreign nations, but not against any of the States, 
or any portion of the people of the United States. 
They form but one nation, and it is the duty of 
the Government to defend not only all the States, 
but every part, and every citizen of each of them. 
If any State should be convulsed by domestic 
violence, on being invoked by its Legislature or 
Governor, the Government of the United States is 
bound to suppress it. The Constitution defines 
what shall be treason against the United States. 
Congress has passed a law to punish all persons 
guilty of that crime with death; and the courts are 
required to enforce that law against all persons 
who shall have committed it, according to the 
forms of judicial proceedings. It is the duty of 
the President to see that tlie laws are faithfully 
executed. Courts and marshals are the magis- 
tracy by which this office is ordinarily performed; 
but there may be combinations of men so power- 
ful as to baffle and defeat all their efforts to en- 
force the law. The President, in cases where it 
is needful, interposes, and assists them with a 
portion or with the whole of the military and naval 
power of the United States, of which he is the 
s Commander-in-Chief. But the resistance may as- 
sume the proportions of an insurrection, of a 
great rebellion, as is now the fact; and the Presi- 
dent may call forth the militia of the United States 
to the utmost limit of numbers authorized by the 
laws of Congress, and combine this military pqvver 
with the ordinary Army and Navy of the United 
States, to subdue the insurrection. He may also 
convene Congress in extraordinary session, and 
that body may set in the field the whole military 
population of the United States, sustained by all 
their moneyed resources, under the President's 
control as ComiKiander-in-Cliief, to enforce the ex- 
ecution of the laws, to suppress the insurrection, 
to crush the present stupendous rebellion. 

But the whole war power of the Government is 
vested by the Constitution exclusively in Con- 
gress. It alone can declare war and may authorize 
general hostilities,asagainstGreat Britain in 1812, 
or may limit them, as against France in 1798. 
The President cannot raise and support armies, 
or impose taxes, or borrow money, or make ap- 
propriations to support them, or to conduct any 



operation of Government. He cannot call out the 
militia to execute " the laws of the Union, sup- 
press insurrections, or repel invasions," except 
so far as he is authorized by the laws of Congress. 
He is simply the Commander-in-Chief of the Army 
and Navy, and of the militia when in the service 
of the United States; and as such, he is clothed 
with no more authority, nor can he do any other 
acts, than the senior general in the service of tlie . 
United States or any other citizen might, whom 
the Constitution had designated as such command- 
er-in-chief. In conducting war against a foreign 
nation, suppressing domestic insurrections, and 
repelling invasions, he is but the executive officer 
of Congress, and always subject to its control. 
Indeed, the chief power and vigor of the Govern- 
ment of the United States is not with the Presi- 
dent but with Congress, and it has placed at his 
disposition an army numerous as the hosts of 
Xerxes to quell and reduce to submission to the 
laws an organization of insurgents not less nu- 
merous. 

The United States are now at war, not with a 
foreign or independent nation, where international 
law and the rights of belligerents would apply and 
govern, but they have on hand a domestic war to 
put down the greatest rebellion of which history 
has made any record, and the authority and law 
by which it is to be done is found in their Con- 
stitution and the acts of their Congress. They 
have power to suppress this insurrection by mak- 
ing war upon it, to which they may apply all the 
military and naval power and every resource of 
the nation that may be put in requisition by laws 
passed by Congress. But the power of Congress 
to carry on this war is restricted to the suppres- 
sion of the insurrection alone, and when that work 
is done the power of Congress to carry it on also 
stops. Until then, it and its generals and armies 
may conduct the war in the modes and with all 
the' rights appropriate to actual hostilities, for no 
other end than to bring the insurgents to submit 
to the Constitution and the laws. The armies of 
the Un^ed States may pursue and engage in battle, 
and slay and capture the armies of the insurgents, 
blockade their ports, besiege and storm their 
towns, seize and appropriate their arms, munitions, 
and military stores, and all other property that 
they bring into theirarmies to be used in aid of the 
insurrection. But outside of the property used in 
open and active resistance in fact, by organized 
forces, to the authority and laws of the United 
States, our armies have no power, by national 
law or by the long and uniform usage of all civil- 
ized nations, to seize, appropriate, or confiscate 
the property of loyal or disloyal citizens to put 
down the existing rebellion. All rebellions con- 
cern the nations alone where they break out, and 
each one adopts of its own will diflerent and vary- 
ing measures and means to suppress them. As to 
such domestic wars there is no national law or 
uniform custom and usage of nations, except a 
common resort to force of arms to reduce the 
rebels, and a seizure of every material used by 
them as a means to strengthen their hands in their 
revolt. 

The examples of the confiscation measures 
adopted by France and England, at different times, 
and by several of the States during the revolution- 
ary war, prove nothing in support of the position 
that Congress may now pass a confiscation or for- 



9 



feiture act against the rebels. The Government 
of England wa6 not limited in this respect by any 
constitutional provisions, and the power of her 
Parliament over this and all other subjects is 
omnipotent; and that of France was a despotism 
in theory and fact, and botind by no limitations 
upon this or any other matter. When the States 
referred to, during our war of the Revolution, 
passed their separate and diverse acts of confisca- 
tion they were each sovereign, and were severally 
possessed of and in the exercise of plenary and un- 
restricted powers of legislatibn and government. 
But Congress has no powers but what are con- 
ferred upon it by the Constitution, and such un- 
enumerated and incidental powers as may be ne- 
cessary and proper to carry into execution those 
expressly vested. Treason and insurrection are 
cognate subjects and crimes, and the Constitution 
has expressly provided how both shall be treated; 
and no different mode for either, by implication, 
is allowable. 

I have already argued partially of insurrection, 
and of the remedy which the Constitution has 
provided for it; but a part of the remedy is the 
definition it gives of treason, and the punishment 
which it authorizes Congress to declare for it. 
Every citizen engaged in an insurrection is guilty 
of treason, and punishable as a traitor. So far 
as the Constitution treats of insurrection, eono??i- 
ine, and authorizes it, which is war, to be put 
down by military force, by countervailing war, it 
does not intend or contemplate at all the punish- 
ment of the insurgents, but only to put an end to 
the insurrection, the organized and armed resist- 
ance to the authority and laws of the United States. 
Tlie punishment of the insurgents is provided for 
in another clause of the Constitution, and there- 
fore it is not to be derived or argued from that 
which authorizes the " calling forth the militia 
to execute the laws of the Union and to suppress 
insurrections." The matter of the punishment 
of the insurgents, of traitors, must be looked for, 
and learned, from those provisions of the Consti- 
tution which treat particularly of it, and those 
others which relate to it and all other punishment 
for crimes. 1 will here read them: 

" The Congress sliall have power to declare the punish- 
ment of treason ; but no attainder ot'treasou shall work cor- 
ruption of" blood or forfeiture except during the life of the 
person attainted." 

This is the only clause of the Constitution which 
speaks of the punishment of treason; and it rec- 
ognizes, what has never been denied, that it may 
comprehend as well the loss of the property as 
the life of the traitor. Both are the punishment 
of the offender, and not of the offense or property 
forfeited. The idea of punishment being attached 
to the offense or the offender's properly, is sim- 
ply absurd and impossible. By the existing law 
of Congress providing for the punishment of trea- 
son, forfeiture of property is expressly withheld: 
it may be made an additional punishment pros- 
pectively, but for no longer period than the life of 
the offender. Both branches of this clause of the 
Constitution are to be considered together. The 
first confers upon Congress the general poxcer to 
declare the punishment, but the latter prohibits the 
attainder or judgment for treason from operating 
the corruption of the blood, or the forfeiture of the 
property of the offender for a longer period than 



his life; and necessarily, to that extent, qualifies 
and restricts the power to declare the punishment 
of treason. It is not the meaning of this provis- 
ion, that Congress can pass a law denouncing the 
corruptioii of the blood, and the forfeiture of the 
propertyof the traitor, indefinitely and for all time, 
and yet, that the courts in applying that law, 
should be required to restrict their judgments of 
the corruption of the blood and the forfeiture of 
the property to the life of the offender. The power 
to declare by Congress the punishment, and the 
power to pronounce by the courts thejudgment 
against treason, are harmonious, and both are 
plainly limited to the life of traitors. This is the 
construction of the Constitution by Story and 
every authority that is even respectable. 

The first paragraph of section three, article 
three, of the Constitution (I have just read and 
com men ted upon the second paragraph) is in these 
words: 

" Treason against the United States shall consist only in 
levying war against ihera, or adhering to their enemies, 
2iving them aid and comfort. No person fbaW be convicted 
of treason unless on the testimony of two witnesses to the 
same overt act, or on confession in open court." 

But there are other clauses of the Constitution 
which bear materially upon treason and traitors, 
and all other crimes and criminals under the laws 
of the United States, which I will also read: 

" No bill of attainder or ex post facto law shall be 
passed." 

" The trial of all crimes, except in cases of impeachment, 
shall be by jury, and sucli trial shall be held in the State 
where the said crimes shall have been committed." 

"No person shall be held to answer for a capital or other- 
wise infamous crime, unless on an indictment of a grand 
jury, except in cases arising in the land or naval forces or 
in the militia when in aatual service in time ofwar or pub- 
lic danger; nor be deprived of life, liberty, or property with- 
out due process of law; nor shall privateproperty be taken 
for public use without just compensation." 

"In all criminal prosecutions, the accused shall enjoy 
the right to a sjieedy and public trial by an impartial jury 
of the State and district wherein tlie crime shall have been 
committed, whicli district shall have been previously as- 
certained by law, and to be informed of the nature and 
cause of the accusation; to be confronted with the wit- 
nesses against him," Sac. 

The great principles of liberty declared in these 
provisions of the Constitution have their origin 
in the common law of England, were established 
by the Saxon race a thousand years ago, were in 
part incorporated in IMagna Charta, which was 
wrested from a Norman tyrant by the bold barons 
of that island at Runnymede, and were plainly 
and deeply graven upon the pillars of our Gov- 
ernment, for the instruction, guidance, and con- 
trol of all its functionaries, and as an imperish- 
able defense of the American people. They are 
set forth in such plain and concise language in the 
clauses which I have read that any other state- 
ment of them would be no improvement. I will, 
however, here remark, that one of them relates 
to the trial of all crimes except in cases of impeach- 
ment; and another to all criminal prosecutions; 
and it is provided that the trial of both crimes and 
criminals shall be by jury. _ 

Mr. Justice Blackstone, in treating of the trial 
by jury and referring to a remark of Montesquieu, 
says: 

" A celebrated French author, who concludes that, be- 
cause Rome, Sparta, and Cartilage have lost their liber- 
ties, therefore those of England in time must perish, should 
have recollected that Rome, Sparta, and Carthage, at the 
time when their liberties were lost, were strangers to the 
trial byjury." 



10 



"Where the trial by jury prevails, according to 
the principles of the common law, there liberty 
to some considerable extent dwells; but when the 
trial by jury departs from any cause, civil liberty 
flies from tliat land forever. 

Every candid and intelligent man will concede 
that if the bill under debate is in conflict with any 
one principle established by the clauses of the 
Constitution to which I have asked the attention 
of the Senate, should it be passed, it would be 
void and inoperative. I hold, and will now at- 
tempt to show, that it is palpably and plainly in 
conflict with many of them. First, it is in sub- 
stance and effect a bill of attainder. An act of Con- 
gress which declares individuals by name, or by 
description and classes, to be guilty of treason, 
murder, or other felony, and inflicts upon them the 
punishmentof death or the forfeiture of property, 
without the intervention of a court and judicial 
proceedings, would be a bill of attainder. The 
flrst section of this bill proposes to forfeit and con- 
fiscate to the United States the properly " within 
them of ail pei'sons beyond them, or within any 
State or district of the United States now in a 
state of insurrection and rebellion against their 
authority., so that in either case the ordinary pro- 
cess of law cannot be served on them, icho shall, 
during the present rebellion, be found in arms 
against the United States, or giving aid and com- 
fort to said rebellion." It also authorizes the 
President " to designate any civil or military offi- 
cers to seize the property so confiscated, and sell 
that so seized, or so much of it as he shall deem 
advisable, and to pay the proceeds into the Treas- 
ury of the United States." Courts and judicial 
proceedings are wholly ignored, and without their 
agency punisliment, by forfeiture of property, 
would be inflicted by tlie law upon a class of in- 
dividuals ascertained only by vague description, 
and whose numbers would be thousands and hun- 
dreds of thousands; and the President would be 
authorized to execute this judgment against myr- 
iads pronounced only b]j the Imc. 

Another no less conclusive objection against the 
bill is, that it would be the usurpation and exer- 
cise of a judicial power by the legislative branch 
of the Government, when the whole judicial power 
of the United States is vested exclusively in the 
courts. To obviate these objections the bill would 
have merely to define or identify the crime, and 
declare its punishment, and leave it to courts and 
juries to try and adjudge whether the law and facts 
'in the case of each individual established against 
him his guilt of the crime. From reading this bill, 
I was in doubt whether it was intended to have 
both a prospective and retrospective operation, or 
only the former. I think its verbiage and arrange- 
ment leave that point in much obscurity, but the 
able Senator who reported it informs the Senate 
that it was the intention of the committee by whose 
order it was reported ,'and of himself also, to make 
it prospective only ; and that if it is not suflrciently 
clear on that point it can be made so by amend- 
ment. But three other objections to this bill arise 
out of the third section of the third article of the 
Constitution. 

1. The crime denounced and intended to be 
punished by it, tiiough notdenominated, yet, from 
the language used, it is quite clear is meant treason. 

In the definition of treason by that third sec- 



tion the languageisnearly identical with that used 
by the statute of 25 Edward III, to define treason 
in England. Her courts and the Supreme Court 
of the United States have ruled that the words, 
" adhering to their enemies, giving them aid and 
comfort, "found both in tlieact of Parliament and 
our Constitution, mean by the term "enemies," 
not a portion of the people of either country in a 
state of insurrection or rebellion, but a. foreign na- 
tion with which the countries respectively are at 
war. Wherefore " the giving aid and comfort to 
the existing rebellion" cannot be made treason 
by an act of Congress. 

2. " No person shall be convicted of treason unless on 
the testimony ot two witnesses to the same overt act, or 
confession in open court." 

This bill does not require the testimony of two 
witnesses, or one witness, or any confession in 
open court, orany overtact, or any convictionin 
the cases comprehended by its first section. It 
assumes the guilt, without trial and conviction, 
and without testimony or confession, and without 
overt act or guilty intention, of an indefinite num- 
ber of persons, and authorizes oflicers, civil or 
military, to be designated by the President to 
brand whom they will as criminals and traitors 
by seizing their property upon such imputation; 
and if they seize the slaves of a loyal man in his 
own possession, to regain them he is required 
not only to prove his right to his slaves but also 
his loyalty to the Government of the United States 
during the whole existence of the rebellion. This 
view also establishes that the bill, if enacted, would 
be unconstitutional and void. 

3. The terms " confiscation " and "forfeiture" 
have the same character of legal significance; but 
the latter, being of the broader import, includes 
the former. This third section says: 

" No attainder [judgment] of treason shall work corrup- 
tion of blood or forfeiture, e.xcept during the life of the per- 
son attainted." 

The bill declares the forfeiture of property in 
general language, without restriction as to the 
time of its continuance and effect. But for this 
limitation of forfeiture in this provision of the 
Constitution, under the bill, it would be in per- 
petuity. Thus another unconstitutional objection 
to the measure is established. 

In the still remaining doubt whether this bill is 
not subject to the objection of being ex post facto, 
I will liere say a word in exposition of that prin- 
ciple. Any law which makes an act a crime 
which was not criminal when it was done, or if 
then a crime, aggravates its enormity or punish- 
ment, or requires different or less evidence to con- 
vict an oflender than was requisite when the of- 
fense was committed, is ea;;)os^/«c<o. Laws which 
would inflict jiecuniary penalties, or forfeitures 
of property, or which would increase them after 
the criminal act, would be subject to the same 
constitutional objection. (See Story's Commen- 
taries on Constitution, sec. 1339, and Fletcher vs. 
Peck, G Cranch, 138.) 

Mr. President, I have not heard any Senator 
controvert the positions, that where a citizen is 
under prosecution for treason, or any other crime, 
and is being tried for the purpose of personal 
imnishment, that he must first be indicted by a 
grand jury, be brought publicly to trial in a court 
within the State and district where the crime is 



11 



charged to have been committed, tried by an 
impartial jury thereof, confronted with the wit- 
nesses against him, and have the benefit of coun- 
sel. 

It is often contended that the law may declare 
the forfeiture of the property of a criminal as a 
part of his punishment, and the title of his prop- 
erty may be vested by the law in the United 
States upon the commission of the offense, and 
the courts be authorized to jiroceed against the 
prop_erty in rem, and try, without the intervention 
of a jury, whether the crime whicli caused the 
forfeiture had been, in fact, committed, and order 
the sale or discharge of the property, as it might 
adjudge that fact; but never, until the present 
sessi<yi of Congress, have I known the position 
to be assumed that property, so declared to be for- 
feited, could be seized and sold, the sale pass the 
title to the purchaser, and the proceeds to be paid 
into the Treasury of the United States, and the 
owner to be thus forever deprived of his property 
and all compensation for it, without any finding 
of a jury or judgment of a court. Such a course 
of procedure is not allowable; it is unconstitu- 
tional; it is monstrous! I am aware that for a 
violation of the revenue and other laws of the 
United States, property connected with such vio- 
lations is directed by those laws to be seized, and 
the validity of such seizures has been sustained 
by all our courts; and that those courts have pro- 
ceeded, in conformity to the provisions of those 
acts of Congress, in rem, against the property 
they declare to be forfeited, and have, by their 
judgment and decree, ordered itto be sold for the 
benefit of the United States and private individ- 
uals connected with its seizure; but so far as I 
know, or am informed, no court of the United 
States ever decided that the property of a citizen 
could be taken from him and sold, and he be di- 
vested forever of his right to it, and of all com- 
pensation for it, without the inquiry and judg- 
ment of a court, whether the state of fact which 
was to produce the forfeiture had occurred. I 
believe that Congress has never yet passed an 
act dispensing with such inquiry and judgment. 
Even in a state of war with a foreign nation, such 
a proceeding is required in relationto the enemy's 
property captured on the high seas. In the case 
of Gelston vs. Hoyt, (3 Wheaton, 246,) the Su- 
preme Court decided that: 

" By tho Constitution tlm judicial power of tlie United 
States extends to ail cases of law and equity, arising under 
the Constitution, laws, and treaties of the United States, 
and to all cases of admiralty and maritime jurisdiction; and 
by the judiciary act of 17S9 (cliapter 20, section 9,) tlie dis- 
trict courts are invested with exclusive original jurisdiction 
of all causes of admiralty and maritime jurisdiction, and of 
all seizures on land or.Avater, and of all suits for penalties 
and fines under ihe laws of the United Slates; and conse- 
quently, the rij^lit to decide upon the same, hy the very 
terms of the statute, exclusively belongs to the proper courts 
of the United States, and it depends upon the final decree 
of the court, in rem, whether the seizure is to be adjudged 
rightful or turtous. If a sentence of condemnation iie pro- 
nounced, it is conclusive that a forfeiture is incurred ; if a 
sentence of acquittal, it is equally conclusive against the 
forfeiture — and in either case the question cannot be liti- 
gated in any otiier forum." 

Accordant is the case of Slocum vs. Mayberry. 
(9 Wheaton, 3.) These cases recognize the plain 
principle, that the question of the forfeiture of 
property under the laws of Congress, is in every 
case 0. judicial q\iestion, the decision of which be- 



longs, both by the Constitution and the judicjiary 
act of 1789, exclusively to the United States courts. 
Congress has no power to transfer the decision of 
such questions to any other tribunal, or magis- 
tracy, or itself, to decide them. 

It will be observed that those cases sustain the 
validity of laws for the forfeiture and seizure of 
property, and its condemnation by courts by pro- 
ceedings in rem, only for infractions of the rev- 
enue laws, and other laws relating to trade or civil 
polily. There may be found in other decisions 
dicta which intimate or even declare that Con- 
gress may pass laws for the forfeiture, seizure, 
and sale by courts in proceedings in rem of prop- 
erty for offenses that are mala in se,as well as for 
those that are only mala prohibita. But I have not 
been able to find a case in which the question of 
a difference between the two classes of cases, in 
respect to the right of the owner of the property 
to have the question of the fact of forfeiture to be 
tried by a jury, was decided, or argued, or made. 
Indeed, I have notoljserved any casein which that 
question was directly decided, argued, or made, in 
relation to the forfeitui'e of property for offenses 
malaprohibita. I feel a good deal of confidence that 
as to offenses 7n«/a in se the question is undecided 
and open, and ought to be decided by a just and 
true understanding ofthe Constitution and the laws 
of Congress. 

I maintain that all forfeitures of property are 
intended, and in factare punishments ofthe oioners 
of such property for some actual or constructive 
default or offense of tlie owner or person having 
the control of such property. The notions im- 
ported by the phrases "guilty property "and "the 
punishmentof property, "are absurd and nonsen- 
sical. Properly, except slaves, is wholly incapa- 
ble of guilt and impervious to punishment. It is 
unconscious, insensate, far away both from guilt 
and punishment. But its forfeiture does punish 
the owner, and forfeiture of property is often only 
less grievous punishment than forfeiture of life. 
When judges and courts use the phrases " enemy 
property" and " guilty property," it is to express 
its jiarticular situation without a inultiplicity of 
words. 

I admit that laws inay be so framed as to pun- 
ish a criminal by separate proceedings in court, 
both 7)ersona% and by forfeiture of his property; 
and that an arrest of the pei-son of the criminal, 
and his trial and conviction, are not necessary to 
authorize a yidginent for the forfeiture of his es- 
tate where the law provides for such separate pro- 
ceedings. But where the pi-oceedings are separated, 
to produce a constitutional and valid forfeiture of 
either life or property, there must be judicial pro- 
ceedings, and a judgment of a court establishing 
the facts upon wliich the forfeiture is to ensue. A 
person guilty of treason may be made to answer 
for it by two distinct trials in court, and by two 
kinds of punishment, after the law shall have so 
provided — the one by the loss of life, and the other 
by the loss of property. By both modes the com- 
mission ofthe crime hy him has necessarily to be 
inquired of and adjudged by the court where either 
the criine or criminal is tried; in both, the crim- 
inal is punished; but in neither is there, nor can 
there be, any punishment of the crime. 

The Constitution asserts that " the trial of all 
crimes, except in cases of impeachment, shall be 



12 



by jury;" and also that "in all criminal proiecw- 
tion's the accused shall enjoy the right to a speedy 
and public trial by an impartial ;'urj/,"&c. The 
first provision is in the original Constitution, and 
requires " the trial of all crimes to be by jury;" 
the second is an amendment, and requires "the 
accused in all (criminal proseculions" to be also tried 
by a. jury. It is witliin the power of Congress to 
pass a prospective law attaching the additional 
punishment , of the forfeiture of his properly for 
his lifetime to the criminal. The judicial power 
of the United States courts would extend to all 
cases arising under such a law, and every case 
■would have to be instituted according to tlie forms 
of judicial proceedings, and is directed by the Con- 
stitution to be tried by a. jury. Because this bill 
is arranged so as to evade that mode of trial, also, 
it is in conflict with that instrument. 

And yet it is liable to another constitutional 
objection. It provides for the forfeiture of prob- 
ably millions of slaves, who are scattered all over 
the fifteen slave States, and declares them all to 
be immediately free, and leaves them in that con- 
dition in the States where the law will act upon 
them to make this change in their condition. Con- 
gress has no expressly granted or inci(/eri/rt/ power 
to emancipate these slaves. In relation to each 
slaveState,lhefVeedomorthralldom of their slaves 
is a great question of domestic State polity, over 
which Congress or the United States Government 
has no jurisdiction. It is a matter of transcendent 
interest and importance to most of those States, 
and no conceivable measure, or spoliation, short 
of stripping them of all their lands, would, for the 
present or the future, approximate the magnitude 
of this measure. It would take from the cotton 
States the bulk of all their worldly wealth, and 
reduce them to poverty, wretcheclness, and de- 
spair; and they will neversuccumb to itwhile they 
can raise an arm to resist i,t. Congress has nei- 
,ther the expressly delegated nor implied power to 
liberate these slaves. The implied powers can 
only be such as are appropriate to the execution 
of some express power, and must be merely an- 
cillary and incidental to such express power. On 
the pretext of invoking assistance to execute an 
express power, Congress cannot assume a greater 
and more extensive one, particularly one so for- 
midable as to enable it, as to fifteen States, to 
break down thegreal principleof our complicatpd 
system — that all the internal affairs of the States 
are exclusively under their own governments. 

I ask to know wliat enumerated power of the 
Government is to be executed, or to be assisted 
in its execution, by Congress seizing upon the 
power to liberate millions of slaves. It is not 
necessary to enable the Government to subdue the 
rebellion. Indeed, it would strengthen the rebel- 
lion by energizing with despair the rebels, and 
producing with thousands and tens of thousands 
of loyal men, in thefreeas well as the slave States, 
a feeling of alarm, revulsion, and condemnation 
for an act of usurpation so flagrant and dangerous. 
Congress could omit all forfeiture of the slaves; 
but that is the not denied pretext to give a sem- 
blance of power to free them. To coin money, 
could Congress seize all the jewelry and plate 
which is owned by the American people? To 
carry on the war against the rebellion, could it rob 
all the banks of the United States.' No Union 



citizen that I have ever heard of has asked that 
this war be conducted by the United States for the 
defense of slavery, or objected to slaves being for- 
feited like other property. All that the Union 
slaveholders ask for slave property is, that it shall 
be treated by Congress and the Government and 
the Army impartially and equally like other prop- 
erty; and if by such course slavery is to be dam- 
aged 01- to fall by the war, they will make no 
complaint; but they do, will forever, protest that 
the war shall not be made a crusade against sla- 
very. 

But while we admit the power of Congress to 
pass laws for the forfeiture of slaves for the life 
of the owner who has committed treason, upon 
another ground we deny its power to emancipate 
them. " Forfeiture"and " confiscation "are tech- 
nical terms — terms of legal art. They have a pre- 
cise and well-understood legal meaning, as much 
so as " bill of attainder," " ex post facto law," 
writ of" habeas corpus," and other legal phrases 
embodied in the Constitution. The meaning of 
these terms was fixed by their adoption in the 
Constitution, and the meaning of each is just the 
same now that it was when the Constitution was 
formed. Congress has no power to change that 
meaning, for that would be to change, pro tanto, 
the Constitution. Congress has power to add the 
forfeiture of property, and make it a part of the 
punishment for treason. It may do in relation to 
the property of persons guiUy of treason exactly 
what is imported by the term forfeiture. Black- 
stone, and all the authors who treat of it, define 
it to be — 

" A punishment annexed by In w to some Illegal actor 
negligence in the owner oflands, tenements, hereditaments, 
or personalty, whereby he loses all his interest therein, and 
they go to llie party injured as recompense for the wrong 
which either lie alone, or the public with him, hath sus- 
tained." 

The essential feature of forfeiture is not so much 
to deprive the one party of the forfeited property 
as it is to appropriate it to the other as compensa- 
tion. It was once contended in the Supreme Court 
that the importation of goods into the United Slates 
was only to bring them into the country, and did 
not comprehend their after sale; but that court 
decided that sale was of the essence of importa- 
tion and a part of it. Appropriation of the for- 
feited property to the injured party is no less a 
part, and of the essence of forfeiture; and I chal- 
lenge my learned friend, the Senator from Mich- 
igan, to adduce a single instance of forfeiture or 
confiscation by legislative action, in this or any 
other country, where the property forfeited was 
not so appropriated. The acts of forfeiture and 
confiscation of the States, in the warof the Revolu- 
tion, to which he referred us, transferred all the 
forfeited property to the States severally. Three 
or four of them were slave States, and the prop- 
erty confiscated by them included slaves, which, 
alike with all other property, was appropriated to 
the States. The idea of the forfeiture of property 
by law, without appropriating it, is one of the 
mischievous errors of this innovating and reckless 
age. The provisions of the bill relating to slaves 
would not come up to the measure of forfeiture, 
and would be void for incompleteness and imper- 
fection. 

Mr. President, I should like to speak from half 
an hour to an hour longer. I have not concluded 



13 



my remarks. I have some, of great importance 
as I deem, yet to make. I feel a good deal ex- 
hausted, as it is my habit to speak vehemently. 
I would therefore throw myself upon the courtesy 
of the Senate, and ask that they proceed now to 
the consideration of some other business and allow 
me to conclude iny remarks (which I promise to 
make as short as I can) to-morrow. 

Mr. SUMNER. If the Senator will give way, 
I move that tlie Senate proceed to the considera- 
tion of executive business. That will leave the 
Senator in possession of the floor. . 

Mr. DAVIS. I thank you, sir. 

Wednesday, April 23, 1862. 

Mr. DAVIS. Mr. President, I have manifested 
a great deal of interest in the bill which is under 
consideration, and I have occupied a considerable 
portion of time in its discussion. I have done so 
from my deep convictions of the great importance 
of the measure. In its extent and in the magnitude 
of material interests involved by it, in its influence 
upon the present and the future condition of the 
whole country, if it should become 'a law and 
should be carried into effect, and especially upon 
my own State, in my judgment, it never has had 
a parallel in any proposition that was ever pre- 
sented in the Congress of the United States. In 
the objections to its constitutionality, to its expe- 
diency and policy, to its justice and practicability, 
it is also without any parallel. That I have not 
overstated or conceived too largely the great in- 
terestof this bill, I will read a concluding sentence 
of the speech made by the honorable chairman of 
the Committee on the judiciary, [Mr. Trumbull,] 
who reported it: 

'•I appral to Senaiors as pliilantliiopists, as patriots, as 
lovers of the Union and of constilutional liberty, not to let 
pass this opportunity which a wicked rebellion presents of 
making it the means of giving freedom to millions of the 
human race, and thereby destroying to a great extent the 
source and origin of the rebellion, and the only thing wliich 
has ever seriou^ly threatened tlie peace of the Union." 

I concluded yesterday, Mr. President, the view 
of the constitutional objections which 1 conceived 
to arise against the measure, and I will sum up 
that argument now in a sentence or two. Con- 
gress has, by the Constitution, expressly the power 
to make war. Congress has, by the Constitution, 
every necessary and proper power to carry that 
express power to make war into execution. Now, 
sir, what is the etfect of these two provisions? 
The whole war-making power, except so far as is 
involved the responsibility and the action of the 
Commander-in-Chief of the armies of the United 
States and of his subordinates, is exclusively with 
Congress. Congress, as auxiliary to that primary 
and express power, lias every necessary and in- 
cidental power to give it full ettect. How are those 
incidental powers ascertained; how are they put 
into active operation.' In no other form than by 
the enactment of laws of Congress 'embodying 
those powers. The idea of claiming from interna- 
tional law, or from any other body of law outside 
of the Constitution and the laws of Congress, an 
auxiliary power to enable Congress to carry on 
the war, before that power has been invoked by 
Congress itself and embodied in the pass;ige of a 
law, to my mind, is perfectly preposterous and 
absurd. 

Congress has power to call out the militia of the 



United States to suppress insurrection. That is a 
primary and express power vested by the Consti- 
tution in Congress. What powers have Congress 
in connection with that power and auxiliary to it? 
It has the power to invoke every other necessary 
and proper power to carry into complete opera- 
tion and effect this power to call out the militia to 
suppress insurrection; but how are those powers 
to be ascertained and identified? Precisely in the 
same mode. Nopower, as incidental to.thepower 
to suppress insurrection, can be available or can 
be brought to the work of suppressing the in- 
surrection until it is embodied by Congress in an 
act as auxiliary to the main power of suppressing 
the insurrection. I then reject and condemw ass 
heterodox entirely the principle that woald invoke 
the general war-making power as recognized by 
international law, or any other law, to assist Con- 
gress in suppressing insurrection until Congress 
itself has adopted that power by the passage of a 
law for that purpose. Whenever Congress puts 
itself in that position and asks the agency and the 
aid of any auxiliary power, the question imme- 
diately arises, is that au.xiliary power constitu- 
tional or not? If, upon the examination of that 
question, it is found to be in conflict with an 
express provision of the Constitution, or if it is 
incompatible with any right that is recognized 
by the language of the Constitution, there is no 
other conclusion than that such an act of Con- 
gress would be against the Constitution, the para- 
mount law of the land, and would therefore be 
void. 

Mr. President, I will bring to my aid another 
authority in support of these positions, an author- 
ity that ought to challeniri' the respect of the abo- 
lition members of this House at least, and of all 
the abolition party, in or out of the Senate, in the 
United States — the authority of Wendell Phillips. 
I read from the Philadelphia Inquirer: 

'•One of the most powerful arguments ever made to prove 
that slavery is sanctioned and protected by the Constitution 
of the United States was made by Wendell Phillips. Jt i^^ 
because that is the law that, to use his own words, he has 
advised his followers to 'disavow the Constitution' and 'to 
trample it under foot;' and it is because he fears that the 
President, General McClellan, and our brave soldiers are 
now battling to maintain, and not to subvert, that Constitu- 
tion and the Union under it, that this itinerant mischief- 
maker and disunionist is so abusive of the President, Gen- 
eral McClellan, and the mode in which the war is being 
conducted. What! say you, did Wendell Phillips ever 
argue that slavery was legal and constitutional? Yes, good 
reader, he did, and we mean to ventilate his record of that 
and of his secession doctrines. 

"In or about 1845, one Lysander Spooner wrote an essay 
to prove that slavery was unconslitutional; and in 1847, 
Mr. Phillips took up'the cudgels to belabor poor Spooner 
and to convince the anti-slavery public that the institution 
of slavery was as much protected by the Constitution as 
anything else. His motive we will presently see. We will 
briefly state Spooner's objections and the replies of Phil- 
lips. His whole argument was published in the Anti-Sla- 
very Standard, and republished, in 1847, by Andrews &. 
Prentiss, No. II Devonshire street, Bofston. 

"SrooNER. Only what is just and right is law; lience 
slavery, which is neither, is not lawful. 

"Phillips. That is false when applied to municipal 
law; the latter always means the declared will of tlie na- 
tion ; hence slavery is lawful, if they have so willed it. 

" Spoonf.r. a judge, or other person holding office under 
the Constitution, may retain his office, yet treat the Consti- 
tution as void." 

That is whatGerrit Smith, Greeley, Garrison, 
and others of that school say: 

" Phillips. Not so. When he takes office he looks over 



14 



the catalcijriie of his duties, (namely, the Constitution,) 
swears tv; will supportit, and thus admits it is moral ; other- 
wise he would be swearing to do what is immoral. Thus he 
makes a eoutract with the people, and is perjured if he does 
not keep it. He should resign his place, and then, i-k a man, 
itreatthe Irws (namely, the Constitution,) as void!" 

H« has the merit of candor and boldness, if 
■nothing else: 

" SpooNER. Each judge may decide for himself what is 
right and just, and, hence, what is law. 

■"^'niLi-iPs. Not so. In that case law would be one 
ithingiij JIaiue and another tiling in Maryland; one thing 
to-day and another thing to-morrow. Then orthodoxy 
•would he r,ii/doxy ; and by right reason every one would be 
willing Tfi mean hisown. Tlien follow his citations of legal 
.ttuthoritics, and he concludes by affirming ' positive law, 
then, -caii so establish even slavery that courts must treat it 
as legaL The only test to which our courts have any right 
,to submit the action of the Legislature is, to ask is it con- 
.9titutio«al?'" 

A sou-nder position was never taken: 
" ' If so, it is legally binding on them, no matter how un- 
just or how unreaso«iable it is. Such is the framework of 
4he Government under which we live.' 

■"SpoeNBR. But slavery has never actually been estab- 
Sished byJaw in this country." 

I wish I had had this argument on the occasion 
of the 'debate in this body on the bill to abolish 
slavery in the District of Columbia. I think I 
•could have u.sed it with some point and force, if 
not wi"th s'.icces.'!, against my honorable friend, the 
SenatoT liom Minnesota, [Mr. Wilkinson,] and 
the hoMoinble Senator from Maine, [Mr. Mor- 
RiLi.,5 who fathered that measure: 

■"PiHLT.ips. The people who made the Constitution 
meant il)y it to protect slavery. To argue otherwise Is to 
attempt ' arguing the nose off one's face.' They meant to 
protect it by — 1. The three fifths slave basis, and that al- 
Jows slaves to 1)0 treated as things, and so not as persons. 
YettSie South lose by that; for, by thet'ormer, the political 
■weigJuoftliemaster would be increased by two tilths, which, 
by tile latter, lie loses ; and so liberty gains. 

" Spoonkr. Tlie slave argument wrongly assumes that 
the word 'free' in this clause is used as the correlative of 
^slavery, and thence it wrongly infers that the words 'all 
other persons' mean slaves. 

"Phillips. The obvious use of the word 'free' is to 
■designate one not a slave; hence the Constitution must be 
■confessed to recognize slavery. [Then Phillips proceeded 
to prove that the true use of that word ' free' is to distin- 
guish such a person from a slave, and, to prove that, he 
■cites authorities from Magna Charta to the Declaration of 
Independence, both inclusive.] 

" Spoo.ner. The word ' importation,' in the slave-trade 
■clause, does not refer to slaves. 

"Phillips. It does refer to slaves. It could not mean 
free white persons, for that would allow Congress, after 
1808, to prohibit their arrival altogether — a thing more in- 
consistent with natural right than the one he (S.) is trying 
to avoid. 

" Si'ooNEU. The so-called fugitive slave clause does not 
say slaves, and it does not mean them. 

'• Phillips. It does refer to them. The ordinance of 1787 
expressly orders the surrender of slaves. 

" Spooner. By 'one held to service or labor' is not 
Wieant a sUnc. 

"Phillips. That is its true meaning. Johnson's Dic- 
tionary, 17.>5 : slave, one niancipated (bound) to a master. 
Roiidman (lijundmn.\\) is the old and usual English word 
Jbr slave, aiul bondage for slavery. It is so used in the 
Bible. ' lielil and holden' are still the popular description 
*)f slavery; for we say slaveAoWer — slave owner. ' Service' 
is derived from the Latin word for slave, ^sercus.' Joseph, 
wlio was bought and paid for, was called, in King James's 
tianslatjon, 1611, a servant. 

*• Spooneii. The clause giving power to suppress insur- 
rections does not involve an admission of slavery. 

" Phillips. The phrase' domestic insurrections,' is used 
ill the Declaration of Independence, with reference, it 
would seem, to slave risings ; if so, this use of it would go 
far to settle its meaning here. 

•' Spooner. The Government must be republican, but it 
cannot he a repubjic If it liold slaves. 



" Phillips. The delinitions are not so. Mr. Phillips 
here cites numerous definitions to contradict Spooner, and 
then adds: 'The Constitution meant by a republic the 
State governments as they then existed, and twelve of them 
then held slaves. In the face of such authority as this, as 
well as the fact that the mass of men in the old republics, 
from whence we copy the word, (Athens, Sparta, Rome,) 
were slaves, and that in Holland and Italy, their modern 
imitators, not one man in a thousand had any share in the 
Government — who will undertake to say that this word, 
either in its general sense or as used in our Constitution, 
has any necessary inconsistency with slavery.' Hence it 
must be presumed that the word ''republican," in 1788, did 
not exclude the idea of slavery. Any other construction 
makes the public of that day absolute fools.' 

" Spooner. The Constitution made citizens of all the 
people of the United States living in 1789. No citizen can 
be a slave; hence, negroes, being citizens, are free. 

"Philljps. It did not make citizens of all the people; 
not of the Indians. That it was not intended to include 
slaves under the phrase 'people of the United States,' or 
to make citizens of them, is evident from the various slave 
clauses which we liave been considering. The truth is, Mr. 
Spooner perpetually forgets that the United States Consti- 
tution has nothing to do with the municipal rights or pri- 
vate relations of men ; all these are left to be regulated by 
the States." 

There is not a more important or vital or fun- 
damental jjlinciple in our whole complicated sys- 
tem of Government than that enunciated in these 
clear and strong terms by Wendell Phillips. It 
will stand as one of the corner stones of the Con- 
stitution, the temple ofour liberty, until it is rocked 
and is tottering to its fall. The men who are 
endeavoring to heave it from the deep founda- 
tions of our Government are worse than a blind 
Samson — trying to overturn the temple of liberty 
and to bring it down in ruins upon themselves 
and their common country: 

"Spooner. But even if the Constitution could be ap- 
plied to slavery, yet there was no slavery /e^aUi/ existing in 
the States in i7!:'9 to which it could be applied, SiC. The 
coloni;il charters did not authorize it, nor did the ICnglish 
statutes. If it had iieen tolerated, yet Lord Mansfiild's 
decision in Sommerset's case put .'in end to it. The Decla- 
ration of Independence abolished it, and tiie Articles of Con- 
federation did not recognize it." 

Now let us hear the reply of the powerful logi- 
cian, Piiillips, to that complication of objections: 
"Phillips. All these are incorrect. 1. Slave laws are 
not repugnant to the law of England. When the charters 
were made, slavery was not illegal. Laws regulating the 
slave trade were common on the English statute-bor)k till 
1807. The charters all legalized the slave trade and sla' 
very, and my friend, William J. Bowditch, Esq., suggests 
to me that the whole argument on the inconsistency of the 
slave laws with the charters is unfounded and absurd." 

It is equally so in relation to the Constitution. 
Neither the Declaration of Independence nor the 
Constitution was ever intended to embrace slaves 
nor any of the negro race, nor any of the Indian 
race, nor foreigners. It has been attempted in 
this argument to apply the prohibitions of the Con- 
stitution to foreigners. It no more embraces for- 
eigners than it does quadrupeds. It no more 
embraces Indians or slaves, exccjit one or two pro- 
hibitions that are intended to preserve the human- 
ity of our Iftws, than it does quadrupeds or wild 
beasts. The only partners to our political pai'tner- 
ship were the white men. The negro was no party, 
and he cannot now conslilulionally be any party 
to it. He was outside of it at the time the Consti- 
tution was formed, and will be forever, to this fun- 
damental law ofour Government: 

"2. The English statutes recognized it. Mr. Phillips then 
argues the question at length, and cites, to prove his p'osi- 
tion, the statutes, 5 George II, cap. 7, 6 Statutes at Large, 
74, which render negroes, houses, lands, &c., subject to 



15 



execution (or debts ; and 23 George 11, cap. 31, A. D. 1750, 
wliicli speaks of ' negroes or other goods.' " 

This is a progressive age. It seeks to change 
and abolish not only institutions and property, 
but language — language fixed by fundamental and 
constitutional law, as much fixed as the language 
of Holy Writ itself. Why, sir, the United States 
Government have sold many slaves. They have 
had debts and recovered judgments against slave- 
holders in the slave States, and I have no doubt 
hundreds and hundreds of cases, by an examina- 
tion of the records of the slave States, could be 
found where the judgments in favor of the United 
States themselves have been made by bringing 
slaves to the block and selling them as other prop- 
erty. Mr. Phillips continues: 

"The Sommerset case admittedthe validity of slavery in 
Virginia, whence Sommerset came." 

I wish I had hunted up that famous Sommerset 
case. The law in England was that slavery was 
lawful there, and slaves were there held, and were 
bought and sold as property until the moment that 
Lord Mansfield delivered that opinion. He him- 
self made that law, and not the British Parliament. 
Courts often make laws, and here was one of tiie 
most important principles made by the dictum of a 
court. He had no power to render such an opin- 
ion. It was a judgment of the court against the 
law of England, and would have been so decided 
if the number of slaves in that country had been 
of sufficient magnitude and interest to authorize 
those who owned that property to controvert the 
validity of his judgment. 

Mr. SUMNJER. Will the Senator allow me to 
mention that the number of slaves at that moment 
in England, it is understood, was thirteen thou- 
sand.' Thirteen thousand were emancipated by 
his decision. 

Mr. DAVIS. What were thirteen thousand 
slaves in that island at that time.' I do not re- 
member ifs population; but I suppose the popu- 
lation of Great Britain, including Ireland, at that 
time was twenty millions. What are thirteen 
thousand slaves to twenty millions of people.' 

"3. The Sommerset casearfma^ed the validity of slavery 
in Virginia, whence Sommerset came. Mr. Phillips then 
combats an argument of Dr. Belknap, and adds" — 

These are Phillips's words, not mine — 

" As to the rest, a more truly Yankee notion than pure 
love of liberty probably secured them freedom, (viz., cer- 
tain slaves judicially declared to be free,) for Parsons, 
C.J."— 

One of the ablest lights of the law this country 
has ever produced, whose decisions shed a broad 
beam of effulgent light upon every legal question 
embodied in them — 

" says, (4 Massachusetts Reports, 128, A. D. 1808 :) ' Tlie 
defense of the master was faintly made, for such was the 
temper of the times that a restless, discontented slave was 
worth little; and when his freedom was obtained, in a 
course of legal proceedings, the master was not holden for 
Ills future support if he became poor.' This (adds Mr. 
Phillips) was probably why men went through court to free 
slaves." 

This war will, to some extent, introduce that 
consequence in the United States. That is a legit- 
imate consequence of the war; and let that conse- 
quence come in all of its full extent, force, and 
effect, in depriving the master of his property or 
deteriorating its value. That is one of the legiti- 
mate effects of this rebellion and of this war. If 



that cause should operate to render worthless the 
whole slave property of the country, it would be 
a legitimate result, and the slave owner could not 
reasonably or properly make any complaint of it. 
But when Congress travels out of the pale of its 
powers, tramples upon the Constitution, usurps 
a power that enables it to absorb the management 
of the most vital domestic interests of the States 
for the purpose of striking the manacles from the 
slaves, to use their vaunting phrase, then the slave 
owner and every lover of the Constitution has the 
right to enter his protest again St the exercise of such 
a usurped power. Mr. Phillips continues: 

" 4. The Declaration of Independence did not abolish 
slavery. The Declaration had nothing to do with slavery. 
That paper ' dissolved the political bonds' that bound the 
colonies to England, and that was all it did or was intended 
to do. No court has ever held it to be the fundamental law 
of the land." 

That is his position. It is no law at all. It 
is a mere paper giving a public and solemn asser- 
tion of certain liuman rights as those rights were 
applicable to the white race of the United States, 
and it ignored wholly the red race and the black 
race of men that were then in the country. 

" No court has ever held it to be the fundamental law of 
the land." 

And no court ever will that has any intelligence, 
judgment, or sense of what the Constitution and 
laws of Congress are, in contradistinction to the 
Declaration of Independence, or any other mani- 
festo that may have been put forth by the Conti- 
nental Congress. 

" On the contrary, it rs simply a State paper, a political 
act, changing the form of Government, and having no rela- 
tion to individual rights." 

It severed the political tie that bound the thir- 
teen colonies to the mother country. It did not 
regulate, nor was it intended to regulate property. 
It had no effect whatever upon the rights of indi- 
viduals as related to their persons or their prop- 
erty, whether property in slaves, in land, or any 
other subject of property. 

" He then cites in proof of that the declaration of John 
Quincy Adams, and adds: 'Everyone knows, and every 
page of our history proves, that liie Declaration was nei- 
ther intended nor supposed to abolish slavery.' " 

A man would have been thought a dreamer, a 
madman, or an idiot, who would have assumed 
that position at that tiine. That is one of the vast, 
monstrous ideas that have loomed up from the 
distempered imagination of the present and the 
immediately preceding generation. It is false in 
principle; it is false in fact; it is false in all its rela- 
tions and consequences. 

"5. That the Articles of Confederation do not refer to 
slavery. Mr. Phillips replies: they refer to 'free inhab- 
itants,' meaning those not enslaved ; and we shall merely 
remark that any plain reader of them will at once say that 
they do ' (speak of slaves.) Lastly, ' the Constitution of 
the United States deals with slavery as afacf " — 

As an existing fact, as a fact that had existed 
for two hundred years under the national law of 
the whole civilized world, and every nation of the 
civilized world engaged in the traffic of buying and 
selling slaves, and owning them as property — 

" the Constitution of the United States deals with slavery 
as a fact, and gives it, as such, certain rights." 

The judgment of the Supreme Court of the Uni- 
ted States in the case of Prigg vs. the Common- 



16 



wealUi of Pennsylvania rendered by Justice Story, 
decided that the owner of a slave had a rip:ht to 
pursue hint into any State of the United States, 
even where slavery was proscribed and abolished 
by the laws of that State, and then and there to 
seize and reclaim his slave if he could do so with- 
out a breach of the peace; that he had the same 
i-ight to rectaplLire his slave that he had to recap- 
ture his horse or any other property; that he had 
a right to retake it wherever he found it, and in 
that way to assert his right and his dominion over 
it, so as not to make a breach of the peace; and 
that principle was as legally and legitimately ap- 
plicable to a slave as to a horse or any other prop- 
erty. Yet, in this day, at this very session, we 
have passed laws that throw obstacles in the way 
and that practically prevent the master of a slave, 
although he be a loyal man, from exercising that 
.rightwhich the Supreme Court by the concurrence 
of all its judges and by the judgment of that en- 
lightened jurist, himself an anti-slavery man. Jus- 
tice Story, decided tiie slaveholder had the right to 
exercise wherever he could in any free Stale, al- 
though slavery might be prohibited in that State 
by its constitution and laws. But I will continue 
the reading of this extract: 

" Such, then, is a very brief but accurate outline of the 
extraordinary argument of Wendell Phillips in favor of the 
legality ofslavery, by the coniniom law of England, by the 
common law and charters of all the colonies recognized by 
the Articles of Confederation, expressly protected by the 
Constitution of the United States, and not in the slightest 
degree impugned by the Declaration of Independence !" 

If those gentlemen, who have their ears, their 
minds, and their hearts so wide open to receive 
the mischievous errors, heresies, and dangerous 
untruths that Wendell Phillips is promulging 
through tills land, would just open those organs 
to those great and important truths that he has 
told with a force that no man can controvert, it 
would be much better for the peace and the tran- 
quillity of the country. 

"But why did Wendell Phillips make it? Was It be- 
cause he loved slavery.' Not at all. Tt was because he 
hated and determined to destroy the Constitution of the 
United States." 

And for what purpose.' To effect the destruc- 
tion ofslavery. He had constituted himself the 
great advocate and propagandist of tiie freedom of 
the black race in this country. He boldly and 
recklessly entered the lists to effect that work, and 
to bring it to a successful issue. He declared that 
he was willing to walk over the ruins of the Con- 
stitution itself to effect that object; and that is 
what his followers are now attempting to do, not 
in his bold, courageous, and manly manner, but 
by skulking under false pi-etenses. 

" But why did Wendell Phillips make it ; was it because 
he loved slavery .' Not at all. It was because he hated and 
determined to destroy the Constilidionof the United Slates! 
He admitted that the Constitution so protected the rights of 
southern men that they could not be argued away. Hence, 
in the same essay, he says : ' The people have seldom re- 
gained their freedom by finding a loose joint in the har- 
ness of their tyrants. No, it has usually been necessary to 
trample armor (the Constitution) and armor-wearer in the 
(ii«<.">— Page 86. 

Yes, sir, he admits that .slaves are property; he 
admits that the rights of the slaveholder are pro- 
tected by the Constitution; he admits that the 
Constitution has no joint or break, no weak place 
in it that permits slave property to be successfully 



assailed; and the only way by which it can be 
successfully assailed is by trampling both armor 
and armor-wearer, the independent and conscien- 
tious officers of the law sworn to support the Con- 
stitution, and supporting it in truth, under the feet 
of the assailants; and there is no other mode of 
effecting the object. 

Mr. President, I am no advocate of slavery in 
the abstract. If my will could remove the slaves 
from the United Stales to-morrow, every one of 
them should go. If my vi^iU could place in my 
own Stale in operation a system of gradual envin- 
cipation that would take about three generations 
to consummate it, I would not hesitate to adopt 
it. But this matter of slavery belongs to the States 
themselves and to their people. The free States 
have no more right to force the emancipation of 
slaves upon the slave States than the latter have 
to enforce slavery upon the North. Suppose, sir, 
that the men of the South, which was onde the 
dominating power in this Union and in this Gov- 
ernment, in the arrogance of their nature, in the 
intoxication produced by the possession of power, 
had attempted, by a series of similar measures to 
those which have been originated at the present 
session, and have been so perseveringly pushed 
forward, to force upon Massachusetts and New 
Hampshire, and all the free Slates, the institution 
ofslavery; suppose tiiat they had had the power 
in the two Houses of Congress to pass bills to 
that effect; would the free, stalwart, brave, and 
invincible true men of the free Slates ever have 
submitted to such an interference with their do- 
mestic concerns, to the exercise.of such an oppres- 
sive power of the Federal Government, in denial 
of a right assured to them by every feature and 
every principle of our Constitution, and of our 
complicated form of Government.' No, sir; no. 

But Mr. Phillips says again, "the only way 
their sons," speaking of the framers of the Con- 
stitution, " can free themselves is to disown their 
fathers' act, the Constitution itself." 

If gentlemen intend to do that practically, let 
them do it by open and bold declaration as well 
as by deed; do not let them do it furtively; do not 
let them do it by indirection ; let them do it as the 
reckless Phillips himself proclaimed that he would 
do it. 

'•The only way their sons can free themselves Is to dis- 
own their fathers' act, the Constitution itself. The only 
path to such release is over the Constitution, trampling it 
under foot, not under it trying to evade its fair meaning." 

Sir, this apostle of negro freedom, in defiance 
of the Constitution, declares his willingness to 
overturn that instrument to achieve the result at 
which he aims. This argument in favor of the 
constitutional rights of the slaveholders and against 
the policy and measures that the party now in 
power have originated in both Houses of Con- 
gress, none of them can answer successfully. 

But, sir, a change has come over the spirit of 
Mr. Phillips's dream, and what has produced that 
change.' He thinks he has found his own party in 
power, in the possession of the executive and the 
legislative branches of the Government; or if his 
own parly are not in power, they have such skill- 
ful, dexterous, able, and unscrupulous leaders 
here that they can cajole the simple, moderate, 
conservative, constitutional Republicans into their 
extreme measures, and I expect that he relies very 



17 



much upon the two Senators now in my eye, one 
from Massachusetts, [Mr. Sumver,] and one from 
New Hampshire, [Mr. Hale.] What does he 
now say.' Mr. Phillips was arguing recently in 
this city. ['* Did you see him.'"] I hold no fellow- 
ship with him. i disdain to know any such man. 
Any man who audaciouslyavows himself a traitor 
to the Constitution, and is willing to subvert it for 
the purpose of achieving the emancipation of the 
slaves, or of dismembering the southern States and 
establishing a southern confederacy, or for any 
other purpose under God 's heaven, I condemn and 
denounce. He is a traitor, and his heart is filled 
with nothing buttreason and treasonable projects; 
he ought so to betreated; and when that man Wen- 
dell Phillips was here in this city lecturing as he 
did lecture, he ought to have been seized by the 
President or the Secretary of War and manacled 
and confined at Fort Warren or Fort Hamilton. 
He was a much more wicked, mischievous, and 
dangerous man than many who were so treated. 
What did he say in his lecture here in Washing- 
ton? 

" Now, I love the Constitution, though my friend, (Dr. 
Pierpont,) who sits beside me, has heard me curse it a 
hundred times, and I shall again, if it does not mean jus- 
tice." 

Oh, it is to receive a new interpretation! I 
adhere to the old political bible, and to its inter- 
pretation by its apostles and the Supreme Court, 
and I deny and condemn utterly any of your mod- 
ern Jesuitical interpretations of it. 

" I have labored nineteen years to take nineteen States 
out of this Union ;"— 

Oh, what a labor! — 

" and if I have spent any nineteen years to the satisfaction 
of my Puritan conscience, it was those nineteen years." 

May the Lord deliver this country from any 
such accursed Puritan conscience as that! 

" Unless within twelve months or twenty-four, Maryland 
Is a free State, Delaware, and half Virginia, would to God 
that building" — 

referring to the Capitol — 

"with the city of Washington, had been shelled to ashes 
la.st July." 

What an atrocious sentiment! Suppose a se- 
cesh was to come into this capital or to go to Cin- 
cinnati, and was to take such a diabolical position 
as that, would not the whole world of Black Re- 
publicanismand of Constitutional Republicanism, 
and of Unionism of every name or grade or dye, 
without any exception, have risen in condemna- 
tion of the miscreant who dared to give utterance 
to such a sentiment? 

Speaking of the origin of the rebellion, Phillips 
declares that " it was nobody's fault, but that it 
is the inevitable results of the seeds our fathers 
planted seventy years ago." And in another place 
he says of the fathers of the Republic, " they 
dared not trust in God." 

Referring to William Lloyd Garrison, the in- 
veterate disunionist, who kept standing time out 
of mind at the head of his paper the sentiment 
that the men who had framed the Constitution 
had made " an agreement with death and a cove- 
nant with hell," he characterized him as "a man 
who had done more in the providence of God to 
shape the fate of this nation than any other one;" 
and that he (Phillips) " was proud to sit at his 
(Garrison's) feet." I wish he was sitting there, 



and would sit there forever, and that they were 
both in the very central point of the peninsula of 
Africa. It would be better for the peace of the 
country that they and all their admirers and prose- 
lytes occupied that locality. 

Mr. President, I said that I was no advocate 
for slavery; but I will say a word in relation to 
slavery and its history. We have a sacred and a 
profane history running back between three thou- 
sand five hundred and four thousand years; and in 
all of that long tract of time up to the present mo- 
ment, there never has been a day in the history 
of man that slavery did not exist by the thrall- 
dom of one man to another. From the time of 
the father of the faithful, when he took up his pil- 
grimage from Mesopotamia to the land of Canaan, 
where he had been directed by the command of 
his God, up to this day, there never has been a 
time when slavery did not exist in the world ; and 
gentlemen cannot disprove that position. When, 
through the inscrutable mercy and providence of 
God, His Son visited the earth as a Messiah, what 
then was the condition of the Roman empire' 
There were within its broad and ample limits at 
least fifty millions of slaves. Those slaves were 
then bowed down by a yoke more weighty and 
galling than any that now exists. He was in the 
midstofa slaveholding population, and He taught 
men in relation to the subjects of sin, crime, and 
moral duty, and He was followed by His apostles, 
and His apostles pursued the line of the same 
teaching under His inscrutable inspiration; and 
we find the greatest and wis(?st of those apostles, 
Paul himself, directing and commanding one of 
his disciples to return a fugitive slave to his mas- 
ter. My learned and able friend , the Senator from 
New Hampshire, [Mr. Hale,] is deeply versed 
in the Scriptures; 1 am not, and I speak it to my 
shame; I wish it were otherwise; but I challenge 
him to produce me a word uttered by the Saviour 
of mankind in His mission upon earth, or by any 
of His apostles, where He condemned slavery as 
a crime or a sin by name. On the contrary. He 
taught the mutual duties of master and slave — 
humane treatment on the part of the master, and 
obedience on the part of the slave. 

Why, sir,-after the Norman conqueror won the 
battle of Hastings, and struck down common-law 
liberty in England, what became of the Saxon 
race? Many of them had brass collars put around 
their necks, with their masters' names written 
upon them. In the Roman empire the master 
had not only the power to sell his slave, but to 
take his life without committing any crime or sub- 
jecting himself to any punishment. That was the 
condition of the polity of Rome for a considerable 
number of years. 

Mr. HALE. The Senator has appealed to me 
for an answer to a question which he put. I do 
not pretend to be deeply versed in Scripture, but 
I have a text in my mind that I think hits his case. 

Mr. DAVIS. Let us have it. 

Mr. HALE. Itisthis: " And the times of this 
ignorance God winked at; but now commandeth 
all men everywhere to repent." 

Mr. DAVIS. I hope thatforall the sins against 
the Constitution and the peace of the country that 
have been heaping upon the honorable Senator's 
head for twenty years, the work of repentance in 
sackcloth and ashes with him will soon commence 
and produce its fruits; but I believe he is rather a 



18 



hardened sinner, and I am afraid his case is hope- 
less. [Laugliter.] 

Well now, Mr. President, what do these liberal 
gentlemen propose to do, and how do they talk in 
relation to slavery and the nngroes after they shall 
have been emancipated ? An honorable Senator 
from Delaware [Mr. Saulsbury] proposed that 
the free States should take all the slaves that they 
propose to free, and immediately the whole hive 
was in a buzz, and every man rose up in indig- 
nant protest against any such atrocious measure. 
The Senator from New flampsliire, in a speech 
which he made touching the subject some days 
ago, probably on the District bill — I do not recol- 
lect the precise question before the Senate at the 
time — indulged himself in the expression of vehe- 
ment indignation because of some remarks that I 
had made. I had said, and'I say now, that the 
slaves of the southern States can never be free in 
their present numbers without producing one of 
four consequences. One is, that the people of 
those States would immediately enslave the ne- 
groes again by their laws; and if any such meas- 
ure as this were attempted in my own State, al- 
though I am opposed to slavery, and, in the 
immortal language of the great statesman of Ash- 
land, no power on earth should ever induce me to 
carry slavery into any country where it does not 
exist, yet believing that slavery would thus be 
destroyed in my iiative State by the usurpation 
of an unconstitutional power, I would seek to 
obviate and neutrally the act by every means and 
force that I could command. If that consequence 
did not follow, the slaves would be driven into 
the free States, or into the country south of the 
slave States; or if that consequence did not fol- 
low, there would be a cruel, exterminating, and 
savage war between the two races, that would 
result in tlie total destruction of the inferior race. 
And if that did not follow, the inferior race would 
obtain the mastery, and they would drive the 
white population from the country, or the white 
population would abandon it. 1 was rebuked 
sternly by an honorable Senator from Massachu- 
setts [Mr. Wilson] because I took these posi- 
tions, and he charged me with making threats. 
I did not intend them as threats. I 'intended to 
state them as truths. I spoke of a subject of which 
I have knowledge, because I have lived in its 
presence all my lifetime, and know all its relations 
and bearings. If I were to presume to understand 
the subjects of commerce, of manufactures, of the 
art of war and military affairs in general, of navi- 
gation, and of the fisheries, as tlie honorable Sen- 
ator from Massachusetts and many other gentle- 
men here do, and were to assume that I had as 
much knowledge upon those subjects, and as much 
power and capacity to advise in relation to them 
as they have, I should regard it as great arrogance 
on my part. But, sir, I am now speaking of a 
subject tamiliar to me, which I have been learn- 
ing from my earliest childhood to the present day, 
which I have seen in all its phases and in all its 
relations. If men here who claim to be philan- 
. thropists and patriots would have the good sense 
to take counsel and advice, not of me, but of wise 
and moderate and safe men from the border slave 
States, in relation to this subject, in all its bear- 
ings, in my judgment they would act more wisely 
than they do. The general course of this Senate 
upon all other subjects I greatly approve. The 



general course of the honorable Senator from New 
Hampshire, whose acquaintance it has been my 
good fortune to have had for many years, with 
the deepest and sincerest personal regard and 
friendship for him, I approve upon every other 
subject in the main at the present session. So of 
the Senators from Massachusetts. 

The author of tlie bill assumes, Mr. President, 
and truly, that the subject of slavery is the great 
apple of discord among the American States and 
people. It gave more trouble to the wise, patri- 
otic, and good men who framed our Constitution 
than any and all other subjects; but how then was 
itadjusted, treated and settled? In a spirit of con- 
cession and compromise. In no other spirit could 
the Constitution ever have been adopted or rati- 
fied. If the Constitution is to be preserved and 
perpetuated. Congress and the dominant party 
must again return to that spirit of concession and 
compromise which animated and inspired our 
fathers when they gave this immortal system of 
government not only to our country, but to the 
human race. 

We understand from all the Senators here, from 
the unanimous vote by which the proposition of 
the Senator from Delaware, to which I have re- 
ferred, was rejected, from the declarations of vari- 
ous Senators from the free States, from the pro- 
visions being introduced into the constitutions and 
laws of the free States for the utter occlusion of 
negroes from those States, that no free State is 
willing to have a large number of resident free 
negroes within its boundaries. If I am allowed 
to ly.iy it, I will say that I know that the free ne- 
gro population in theStateof Kentucky is by far 
the worst population we have. But gentlemen 
are not allowed to slate positions here embodying 
their own knowledge of slavery; they are not al- 
lowed to get up and contend for their legal and 
constitutional right to their slaves. There is a 
spirit of denunciation and browbeating on this 
subject in the Senate which I iiave never seen 
equaled since I used to witness the ravings of Wise 
in the House of Representatives. I do not de- 
nounce or condemn Massachusetts for her free in- 
stitutions. It is a matter that belongs to her. No 
slave State that I have any knowledge of has ever 
meddled or interfered with the domestic institu- 
tions of the free States. It was not their province 
to do so. It would have been mischievous and 
unfraternal intermeddling to have done so. Tiiey 
were entitled to the same rules of reciprocity and 
justice from the free States. If those rules of for- 
bearance, of brotherhood, of reciprocity and jus- 
tice had been scrupulously practiced by the people 
of the free States towards the slave States, the 
present great and overwhelming calamity never, 
never, in my judgment, would have come upon 
the country. I believe that that is the true origin 
of it. But, sir, I will now present a few facts to 
the honorable Senator from New Hampshire, 
which I have in a table before me. The States 
that press the abrogation of slavery and a disre- 
gard of the interests of the slaveholder most in 
the Senate are the States of Massachusetts and 
New Hampshire. 

Mr. HALE. I did not hear that. 

Mr. DAVIS. I say that the most vigorous and 
relentless attack upon slavery and the constitu- 
tional rights of slaveholders in the Senate of the 
United States, that comes from any quarter comes 



19 



from the States of Massachusetts and New Hamp- 
shire. A few days ago when, in speaking of the 
number of free negroes in Maryland, the eloquent 
Senator from that State, who has a stoppage in his 
speech, but whose ideas flow along in unbroken 
majesty and truth, was giving utterance to his feel- 
ings and opinions on this subject, the honorable 
Senator from New Hampshire got up and chided 
the people of Maryland for having manumitted 
their slaves, and thereby having so many free ne- 
groes among them. [Mr. Hale. Oh, no.] He 
asked, " was it not their act.'"and he said, " yes 
it was their act." If he did not condemn that act, 
why did he chide them for it.' If the act is proper, 
humane, benevolent, wise, and statesmanlike to 
emancipate all the slaves, and their emancipa- 
tion becomes a local burden upon the States where 
they now reside and where they would be eman- 
cipated, why are you not willing, all of you, to 
take your share of that burden .' Now, for a few 
moments, letus see iiow that would operate. I will 
begin with the State of California. California has 
a good many free negroes. I suppose the most of 
them were taken there as slaves before her consti- 
tution was made; and when California adopted a 
constitution excluding slavery, I became perfectly 
satisfied that there never would or could possibly 
be another slave State on this side of the cotton 
region, and I did not lament the conviction to 
which my mind had come. 
n In this connection I will say that all this fuss 
and disturbance about excluding slavery from the 
Territories of the United States, or permitting the 
immigration and settlement of slaveholders mto 
those Territories, has been, in my opinion, the 
most idle, foolish, and mischievous dispute, short 
of that which now agitates Congress, that ever 
did disturb any people. As a pro-slavery man, 
I would not have given a copper for all the pro- 
tection which the legislation of Congress or of 
Territorial Councils or Legislatures could have 
afforded to slavery or to slaveholders in the Terri- 
toriea. Those laws would have been brutumful- 
men; they would have fallen without the least oper- 
ation; they had been negatived and vetoed by a 
higher law, the law coming from the etenv^l judg- 
ment seat that established the climate, soil, and 
productions of the country. The last Congress 
might have passed any laws they pleased to ad- 
mit slavery into Nebraska or Kansas or any of 
tlie Territories we now have, and such a law 
would not have been of the least practical conse- 
quence, because it could have produced no result 
whatever. 

Is notthatproved by the condition of New Mex- 
ico .' Her Territorial Legislature adopted a slave 
code and laws for the protection of slavery stronger 
and more stringent than those that prevail in my 
own State; and yet by the authority of tlie able 
representative we now have at the Court of St. 
James, in a speed) delivered in the House of Rcp- 
resentativts, when he was a member of that body, 
there were only twenty-five slaves in the whole 
Territory, and fifteen of them, if I recollect aright, 
belonged to otRcers of the Army who had tempo- 
rarily tnkcn them there. At the close of the last 
Congress there was not a foot of the public terri- 
tory of the United Stales but what was open to the 
emigration and settlement of slaveholders; and 
who ever heard of a slaveholder taking his slaves 
to any of these Territories.' Ifany weresofoolish, 



they took them there, having any sensible purpose, 
with a view to have their present services, butat no 
remote time their certain emancipation. Property 
does not seek hazards except upon the seas. I once 
heard of a Dutch merchant who — when Holland 
was the greatest maritime Power upon the earth, 
when her sails whitened every sea, and she had 
possession of a great many distant colonies away 
in Eastern Asia, and her crowding commerce 
was drawing by their argosies returns from all the 
ports of the world — an enterprising Holland ship- 
per — said that he would sail in the pursuit of his 
commerce even through hell itself, at the risk of 
scorching his sails. But in relation to slave prop- 
erty slaveholders are distrustful, they are timid, 
they never will take them to local positions where 
their right to their slaves .is liable to be attacked. 
They never did, and ^ever will. I myself never 
wanted another slave State short of the cotton re- 
gion. I do not now. For you men of Congress 
and of the nation who assumed the position that 
you would protect the slave States and slave own- 
ers in their constitutional rights, but that you 
would give them no more facilitiesand would never 
consent to the admission of another slave State 
into the Union, I have no word of condemnation. 
If you will just act upon that policy now, having 
achieved emancipation in this District, the coun- 
try, the mass of the reasonable and intelligent men 
of the South, would become satisfied to accept your 
compromise upon such a platform. 

But I will proceed with my table. California has 
3,816 free negroes. How many would she have 
to take if all the negroes were liberated and if they 
were then distributed equally among the States.' 
Her ratio would be 56,003. She is not prepared, 
I reckon, for such an importation of free negroes. 
Connecticut, the land of steady habits, among the 
noblest of the Old Thirteen, in whose men, in 
whose statesmanship, in whose love of country, 
in whose valor, in whose performance of all their 
duties as men and citizens, with such exceptions 
only as appertain to all frail men, I have the high- 
est confidence, what would be her condition .' She 
has now 8,542 free negroes, and she would have 
to take 65,733. Illinois now has 7,069. You found 
that both the Senators from Illinois were a little 
tender-footed on the subject, and well they might 
be, for her portion would be 244,536 free negroes. 
Next I come to Indiana; and what would be her 
portion.' She has a goodly number now, com- 
paratively. She has 10,869, and her portion would 
be 192,991, an increase making nearly 200,000. 
The young and growing State of Iowa, that has 
become an empire in the Northwest, and, accord- 
ing to my information, has more of fertile and 
productive and less of refuse land than any State 
in the Union, how many of these slaves would she 
have to take.' She now has 1,023 free negroes. 
She would have to take 96,421. Kansas has 623. 
She would have to take 15,.301. I wish Kanstjs 
had every one of them. [Laughter.] Maine is 
pretty strong upon the bit on this slavery ques- 
tion. My honored friend, the late Governor of 
that State and now Senator, [Mr. Morrill,] is 
not in his scat. I am sorry that he is not; but in 
his presence or absence I never would treat him 
with the least disrespect. My feelings are too 
strongly and deeply and sincerely of an opposite 
character. Maine has 1,195 free negroes. Under 
this apportion men t, she would have to take 89,753. 



20 



Massachusetts has 9,454. She would have to take 
175,866. I wish she had her full quota; [laugh- 
ter;] and I believe that, instead of sending them 
all to Kansas, I would send at least half to Mas- 
sachusetts, and if the Kansas Senators protested, 
I would send'the whole of them to Massachusetts. 
Michigan, the State of my early and honored 
friend, [Mr. Howard,] has now 6,823. She would 
have to take 121,301. My friend has a good deal 
of aversion to the Indians resident in his State; I 
have no doubt this is a very reasonable and well- 
founded aversion, but it is not half as well or as 
deeply founded as our aversion to free negroes in 
Kentucky. I wish I could excite a little more of 
sympathy in his generous bosom on what I may 
call our subject, than he at present feels. 

Mr. HOWARD. Canada is very near us, and 
affords a fine market for " wool." 

Mr. DAVIS. And I believe they starve and 
freeze to death there in the long winters. I have 
received a doleful account of them there. I be- 
live they form tliem into regiments, and ship them 
to the West Indies occasionally. Here is Min- 
nesota one of the youngest sisters. She has only 
229 free negroes now. She would have to take 
24,574. That would be considerable increase. 
New Hampshire has 450. She has not her pro 
rata of the present free negroes. She would 
have to take 46,581; and I wish from the bottom 
of my heart that she had the whole of them this 
day. New Jersey is very liberal, more so than 
any of the States except Maryland, in proportion 
to population. She has 24,947 now; and she 
would have to add to her numbers until they 
reached 96,007. Then there is New York, the 
Empire State, whose broadside once used to de- 
cide all presidential elections; I believe that the 
great West are rather dividing that power with 
her now. What is her number.'' She has now 
49,005. How many would she have to take? 
Upwards of 500,000 more than s!ie has— 557,390. 
Where are the Senators from New York that we 
cannot make a compact with them just to lead 
that number of free negroes into the Empire 
State right at once. Then here is Ohio, the eldest 
sister of the Northwest, and the strongest one yet. 
She has 36,225; and she is the Botany Ray for 
the negroes from Kentucky and Tennessee. Every 
man there who wants to liberate his slaves takes 
them to Oliio, buys land there, and settles them 
on those lands. The reason is that Illinois and 
Indiana, and the other northwestern States, frown 
upon that policy; but Ohio still opens her bosom 
to the reception of tiiat people, and I hope in God 
she will receive her surfeit before a great while. 
She now has 36,225. She would have to take 
334,304. Oregon has 121. She is so distant they 
will not travel there. They are too indolent to 
travel that far. She would have to take 7,509. 
Pennsylvania has 56,376. A good many of them, I 
believe, were made free by the running of the line 
between Pennsylvania and Virginia at an early 
day, a great many people claiming part of Penn- 
sylvania as part of Virginia, and taking slaves 
there. She would have to take 423,767. Rhode 
Island has 3,918; she would have to take 24,717. 
Vermont has 582. I do not think, with due re- 
spect to the Chair, she has quite her ;jrora<rt. She 
would have to take only 45,016. Wisconsin has 
1,481. She would have to take 112,267. 

Well, now, wjiat may be the effect of thig bill.^ 



I am not against forfeiture. I want the property 
of incorrigible traitors forfeited, and their lives, 
too. I want them to pay that expiation to the vio- 
lated Constitution and laws of their country for 
this wicked and causeless rebellion; but I want a 
legal and a constitutional and a humane forfeiture. 
This forfeiture may operate to the disenthralling 
of 3,500,000 negroes. It is only necessary to state 
the proposition that it may strike every man's 
mind as true, whether he has practical observation 
and experience on the subject or not, that it is ut- 
terly impossible, in the cotton States especially, 
for the negro population and the white population 
to remain and live together, boih being free. As 
the honorable Senator from Illinois [Mr. Brown- 
ing] said, 'it would not only be almost better, but 
it would be better altogether, if the two races are 
to remain, that the black race should be in a state 
of slavery, and that the whites should have the 
mastery. Why, Mr. President, that great law of 
society, of mankind, that established slavery in 
the dawn of history, and that has continued it to 
the present time, will continue and perpetuate it 
as long as man lives in a state of society. The 
present form of slavery may be broken up and 
may be abolished; it probably will be; but it will 
spring up as a great social necessity in some other 
form, especially in the tropical countries. 

And here permit me to make a general remark 
in relation to tropical countries. As a general 
rule,alllabor is involuntary. I never knew a man _ 
in my life, or with very rare exceptions, that 
would toil and sweat and labor and fatigue him- 
self in doors and out of doors, in the colds of win- 
ter and the heats of summer, in storm and in sun- 
shine, voluntarily. It may be the result of the 
primal curse of Heaven, "In the svi'eat of thy 
face shalt thou eat bread." It is the result of )u8 
organizatioti; and in the South that is especially 
the law of man, be he the black or the white man; 
and why is it so.' In the South, many produc- 
tions that subsist life are spontaneous. Tliereare 
fruits and vegetables upon which the indolent peo- 
ple who inhabit the tropics can live without man- 
ual labor, and so long as they can do it they will 
never go under a tropical, burning, scorching sun, 
and enc(funter the heats of noonday and the dews 
of night and morning, and labor in their fields for 
the production of tropical products, to any con- 
siderable extent. Labor in the tropics, to be 
available and greatly remunerative, must, neces- 
sarily, be compulsory labori It will never be of 
any other character; it never has been and never 
will be. In the island of Cuba there is more pros- 
perity than in the other islands. Why .' Because 
involuntary slavery of the negro still exists there. 
Go to Brazil; it exists in Brazil; and of all the Gov- 
ernments and countries that were peopled and 
founded by Portugal or Spain, Brazil, at the 
present time, is the most flourishing, the most 
happy; its labor is most productive. 

Thegreat element of national power and of hu- 
man progress is labor. If there is anything on 
God's earth which, next to Christianity, truth, 
and virtue, I admire and revere, it is labor. It is 
labor that has brought man from the savage state 
to be, in truth, the image of his Maker, by his 
present civilization in Christian countries. For 
the tropics to be productive, they must have labor; 
that labor must be involuntary, and it must be the 
involuntary labor of the negro race, for two rea- 



21 



sons: first, they are the inferior race; and second, 
the climate of the tropics and the labor of the field 
in the tropics are more congenial to the negro con- 
stitution than they arc to the white. They can en- 
dure a greater amount of it; they can make it more 
productive, more remunerative. Those are mere 
abstract opinions of mine, and I deduce no conclu- 
sions from them; but I speak of results necessary 
from the organization of man and his existence in 
society. If in ourcountry, or any othercountry, 
there are to be slaves, I, for one, w^ant those slaves 
to be of the negro rather than the white race. As 
to the equality of the races and bringing them up 
to our level in this country, it is all a chimera, a 
dream. There is Africa, a great part of it populated 
by the negro race. It has about eighty millions of 
the true negro race; it has five millions of square 
miles of territory; it was populated next to Asia 
in point of time. In that vast peninsular conti- 
nent, with such a myriad of people, that race has 
never risen to any considerable degree of civiliza- 
tion. Why? Itis because by their natural organi- 
zation they are incapable of marching forward and 
upward to the point of high civilization. They 
never have; they never will. I want the coloniza- 
tion experiment tried ; but if Liberia had not been 
upheld, protected, and guided by the mind, the 
energy, and the arms of the white men, all the im- 
migrants there would have degenerated into bar- 
barism and would have mingled with the savage 
* and pagan hordes who surround them. The Brit- 
ish West India Islands now are not so productive, 
by from three to five limes, as they were in a state 
of slavery; but what little eflicienl industry, and 
what little amount of production they now have is 
owing to the fact that they are British possessions; 
that they receive what little knowledge and skill in 
cultivation they have from the mind of the white 
man. If the rule of the white man was expelled 
from those islands, in a few short years they 
would sink into unproductive barbarism. 

IVIr. President, I do not presume to interpret the 
will of God, either as spoken through His re- 
vealed Word or by His vast and wonderful works 
of creation, upon the subject of slavery. It is far 
above my ken. I receive it as the Constitution 
received it, and as I believe the Saviour of the world 
and His aposiles received it, as an existing fact. 
It has existed for thirty-seven hundred years. 
That is some evidence that it is tolerated by the 
omniscient and gracious Ruler of the universe, 
who permits not a sparrow to fall without His 
notice. It has been built up by man; it has ex- 
isted widely over the face of the earth in all the 
most civilized countries. It will exist, I will utter 
as a prediction — and I am rash for making any 
prediction upon the subject — it will exist in some 
form or other as long as man lives in a state of 
society. But, Mr. President, there are some men 
so conceited, so fool-hardy, so audacious and im- 
pious, as to claim to penetrate and know the secret 
will and purposes of the Great Jehovah in rela- 
tion to this subject, and who daringly utter this 
profane language, " if the God of heaven and earth 
tolerates slavery. He is not my God; if His re- 
vealed word tolerates slavery, if the Bible toler- 
ates slavery, it is not my Bible." Sir, could there 
be deeper or more execrable impiety; or do these 
vain and silly men know all the secret purposes 
of the Omniscient? Howdare they attempt to pen- 
etrate His inscrutable and awful arcana? When 



I, in my closet by myself, in the solitude of the 
night, in the depths of my humility, seek to ob- 
tain the immediate presence of the Great Jehovah, 
it is with an amountof revei-ence and wonder and 
awe that overpowers me; and for these daring 
and impious men to be seeking impiously to make 
themselves the interpreters of His will, outside 
of and beyond His revealed word and His great 
works of creation , is the greatest amount of wick- 
edness and audacity, in my judgment, that can be 
exhibited by man. 

That incomprehensible Being and Power has 
spread abroad into an infinity of space His won- 
derful creations. We occupy one of the smallest 
planets in our system; there is a planet belonging 
to our system that requires about one hundred 
years to perform its revolution — a greater time 
than any of those wretches live on the face of the 
earth; and yet this is but one of the millions of 
systems that are upheld by His omnipotent power 
and wisdom, and that are harmoniously execu- 
ting their laws, which He enacted, throughout the 
enduring years of time. That the great Being 
who created and upholds such vast and incom- 
prehensible systems permits andknows of the ex- 
istence of the evil wretches that are thus seeking 
to interpret His will, in my judgment, is one of 
the most satisfactory evidences of the omniscience 
and of the omnipresence of the Great Eternal. 
That they are not lost in His boundless domin- 
ion in their utter insignificance, but that He sees 
them to-day and forever, is to me a convincing 
evidence of His omniscience and of His omni- 
presence; and that he permits such wretches, 
after the utterance of such impious sentiments, 
to live, is another evidence of His all-pervading 
mercy and goodness. I repudiate all their teach- 
ings. I take the revealed Word of God as it is. I 
take his visible creations as they are. I apply 
my feeble and dim reason to the interpretation 
of His will as it is thus spoken, and beyond 
that I dare not attempt to look into the awful mys- 
tery. He has tolerated slavery for three thousand 
seven hundred years. It will always exist in some 
form or other; and in His own time, when He 
wills it. He will bring it to its termination. He 
may close it in its present form speedily. The 
judgment of the world, I admit, is against slavery 
in its present form. It is in process of execution. 
If that execution can go on slowly, gradually, 
imperceptibly, as all the great processes of nature 
to be beneficent and productive of good must, I 
have no objection to its execution. But this rash, 
empyrical execution that anticipates beforehand 
the judgment of God, and seek as His chosen in- 
struments themselves to become the executioners 
of His judgment, I protest against totally. 

But, Mr. President, it is sufficient to us that, in 
the language of Phillips, the Constitution and the 
law have written our right to our slaves. We 
claim that Constitution as the law that secures 
our right to that property. 

Sir, I shall detain the Senate only a few minutes 
longer; but before I close, I will say a word or 
two more. The President of the United States 
and the Senate and the House of Representatives 
have pledged their honor, their faith, and their 
word upon this subject. I will read the resolu- 
tion passed in July last: 

"Revived by the House of Representatives of the Coti' 
great of the United States, That the present deplorable civil 



m 



war has been forced upon the country by the disunionists 
of the southern Slates now in arms against the constitu- 
tional Government and in arms around the capital;" — 

that is all true, every word of it — 

"that in this national emergency, Congress, banisliing all 
feelings of mere passion or resentment, will recollect only 
its duty to the whole country ; that this war is not waged 
on their part in any spirit of oppression, or for any purpose 
of conquest or siilijiinntion, or purpose of overthrowing or 
interfering with the rights or established institutions of those 
States, but to defend and maintain the sxi,itrcmac\f of the 
Constitution, and to preserve the Union with all the dignity, 
equality, and rights of the several States unimpaired; and 
that as soon as these objects are accomplished the war 
ought to cease." — Journal House of Representatives, first 
session Thirty-Seventh Congress, p. 123. 

That resolution passed the House of Represent- 
atives with but two dissenting voices. In this 
body the vote of my friend, the honorable Sena- 
tor from Illinois, [Mr. Trumbull,] was against it. 
The vote of one of the Senators from Massacliu- 
setts was not cast. The vote of the other, the chair- 
man of the Committee on Military Affairs, [Mr. 
Wilson,] was in its tavor. All the other Repub- 
lican Senators who were then jiresent and in this 
Chamber, stand committed by that solemn pledge 
of record to abide by the principles of that resolu- 
tion; and if they do that, the Union men of Ken- 
tucky and of the border States ask nothing furtlier 
at their hands. The President in his inaugural 
address said: 

" I have no purpose, directly or indirectly, to interfere 
with the institution of slavery in the States where it exists." 

There, sir, is the solemn pledge of tlie man who 
is now the chief executive power of this nation — 
a man, 1 believe, of good faith. He says further: 

" I believe 1 have no lawful right to do so, and I have no 
inclination to do so." 

And in his annual message in July last, he said: 
"Lest there be some uneasiness in the minds of candid 
men as to what is the course of the Government towards 
the southern States,afterthe rebellion shall have been sup- 
pressed, the Executive deems it proper to say it will be his 
purpose then, as i^ver, to he. guided by the Constitution and 
the laws; and that he will probably have nodifferent under- 
standing of the powers and duties of the Federal Govern- 
ment relating to the rights of the States and the people 
under the Constitution, than Ihatexpressed in the inaugural 
address." 

And to the same purpose and in fewer words a 
resolution was passed in the House of Represent- 
atives unanimously. When were those resolu- 
tions passed in the two Houses.' When did the 
honorable, patriotic men constituting the two 
Houses of Congress — the most augustand power- 
ful legislative body upon earth next to the British 
Parliament, for tiuit claims to be omnipotent — 
give that solemn pledge .' It was on the t25th day 
of July, if I recollect aright, three or four days 
after the disastrous defeat and rout at Bull Run. 
The Republican party had then been inaugurated 
in power, but it was in those dark days that it 
gave that pledge. It was uncertain what position 
the border States would take; and I say, now, if 
the programme of measures which has been pre- 
sented and ])asscd by the present Congress — I 
speak of these propositions as a whole, an en- 
tirety, with all their provisions anj all their prin- 
ciples — had been presented to the consideration of 
Congress 'before or after the battle of Bull Run, 
the people of the slave States would have come 
unanimously to the conclusion that the party 
lately installed in power — the Republican party — 



did intend to make the war upon slavery. They 
denied it. Your President denied it. Both Houses 
of Congress, with unparalleled unanimity, denied 
it. They denied it after the great disaster to their 
arms. Your President denied it in his communi- 
cation to General Fremont. 

Sir, suppose these border States — little Dela- 
ware, Maryland, Western Virginia, Kentucky, 
Western Tennessee, and Missouri had all been uni- 
ted, as were South Carolina and the cotton States, 
against the Government, and you had made the 
border States the theater of war, as it would have 
become the theater of war, what additional force 
would you have had to oppose the reconstruction 
of the Government and of the Union .' You would 
have had fully two hundred and fifty thousand 
more men in the field — not braver or better or truer 
men in battle than the northwestern men, but their 
equals. With such an increase of power to the 
confederate arms, where, then, would have been 
your Union.' That was the imposing condition 
of circuiYistances that brought Congress and the 
President to these pledges. 

What were those pledges made for ? What were 
they made by the President for .' What were they 
made by the two Houses of Congress for? Were 
they to be kept in good faith, as they should be 
by honest, true, and patriotic men, or were they 
made that they might deceive and betray .' Had 
they any purpose at that time of violating this 
pledge.' Did they make the pledge to the ear that- 
they might break it to the hope .' I believe no such 
monstrous proposition as that. I believe they 
made it as faithful and true men. I ask them to 
redeem that pledge in the spirit in which it was 
given. If they do, all will go well; but if they do 
not, I tell you, sir, that this war has only begun. 
The Union never can be restored audit never can 
continue except upon the great principle of the 
inviolability of the Constitution and a recognition 
practically as well as theoretically of the constitu- 
tional right of the States respectively, and especially 
of the slave States, to manage their own domes- 
tic concerns. That is an essential principle of 
American liberty, and it is as important and as 
necessary a pillar to sustain the American system 
as is the supremacy of the General Government 
itself within the sphere of its powers. The pros- 
tration of either the constitutional power of the 
General Government or the reserved rights of the 
States would be equally fatal to the great Ameri- 
can system. The people are pledged to its sup- 
port, and to uphold it. It was so constructed by 
Washington and his compeers. They have lived 
under its protection and guidance. Their hearts 
and their minds are given to it with a devotion 
second only to their devotion to their religion. 
They intend to adhere to that Constitution. They 
will fight all who assail or attack it and threaten 
its overtiirow, they care not whether they come 
from the North or the South. 1 speak of the Union 
men of the border States. They would regard the 
subjugation of the military power of tlie rebel 
States as no blessing if it is to be won by the sac- 
rifice of the Constitution. If they are to transfer 
directly or by indirection, by questionable inci- 
dental power, their right, which they nevcrparted 
with, to have slavery or freedom as they will, and 
to regulate all of their other domestic policy, if 
that is to be the condition which this party in 
power intends to exact from them, they will never 



23 



submit to it, and I here avow it as one of their 

representatives. 

If the war is to be made in that form, proclaim 
it. You may overwhelm us, you may conquer 
us, but you will never subdue us. But I tell you, 
sir, that the people of the United Slates and the 
Army of the United States will never enter upon 
such a crusade as that. Three fourths of that 
noble and gallant Army that are novy in the field 
are as much devoted to the Constitution and to all 
the rights of American citizens as I am. They will 
oppose you and all others who attack it stealthily 
and indirectly. They will overthrow you. You 
are now like the Assyrian king, reveling in your 
halls of power, intoxicated by its possession, 
dreaming of its perpetuity and all the good that it 
is to bring to you; but before you know it, if you 
proceed on your present course of policy, your 
doom will be written upon the wall, as it was 
against that ancient tyrant. 

I want tills war brought to a close in the field. 
"We want this work done; we want it done that 
we may not have two wars upon the Constitution 
at once. The war of the abolitionists in the Sen- 
ate and in the House of Representatives and out 
of Congress upon the Constitution is as much a 
waras that of Jeff Davis and his confederate hosts. 
We are equally the enemies of both. We want 
to dispose of one war, that we may be engaged 
singly with the other. We want the rebels sub- 
dued that we may then commence an equally suc- 
cessful and triumphant war upon the abolition 
party, who are trying to immolate the Constitu- 
tion to their theories. 

Mr. President, I have prepared a measure 
which, if I have a chance — [ do not know that I 
shall — I will offer as a substitute for this bill. I 
propose confiscation, and I propose it in a prac- 
tical form. The honorable Senator from Minne- 
sota thought I was trying to benefit Kentucky in 
the proposition I make, and that 1 was somewhat 
selfish and sectional by making it for the l)enefit 
of Kentucky and the other border slave States; 
but the idea did not originate with me. I derived 
it from a former Senator in this body and a former 
member of the House of Representatives from 
Connecticut. He presented me with a bill that 
restricted its operation entirely to the slave States. 
1 told him it would not do; the bill was unjust; 
that it would have to be made more liberal; and I 
set to work and drew up one, forfeiting all the 
estate of any person engaged in the rebellion, or 
who should give aid and comfort to it, making the 
bill prospective, and allowing thirty days' notice, 
to give those who are still with the rebels knowl- 
edge of the passage of such a bill, that they might, 
if they chose, repent and come back to their duty 
and their allegiance to the Government. 

I knew — and that was the reason why I intro- 
duced one feature of it — the conscientious objection 
of a great many men to the Government selling 
slaves. With a view of obviating that objection, 1 
have proposed, as may rightfully be done, that the 
forfeiture shall not inure to the United States Gov- 
ernment, but to every person injured by the re- 
bellion in his person or property. I ]iroposc that 
where any man falls in battle or dies from disease 
in this war, he shall be held to have received 
damage from the 'confederates to the amount of 
$0,000, and his personal representatives may sue 
for or assign the claim. It is a very small esti- 



mate to say that when this deplorable war is con- 
cluded, when blood ceases to flow, and the dove 
of peace is again in our land, at least fifty thou- 
sand stalwart men of the free States will have per- 
ished. My bill would provide $250,000,000 for 
the class of men who shall have thus died in the 
service. I then juovide that every man who shall 
be disabled in the war to any extent, shall have a 
claim upon this forfeited property of the confed- 
erates to the amount of his actual damage, to be 
ascertained by a jury. There will be at least fifty 
thousand more tliat will be disabled to a greater 
or less degree. Their damages would amount, 
upon an average, say to $1,1)00. Thai would be 
$50,000,000 of additional claims that the true and 
patriotic men of the free Stales would have on the 
property of the rebels, the very men who brought 
this war on the country, and who had been the 
cause of the infliction of deaih and disability upon 
them. 

I propose, furthermore, that every man whose 
debts or property have been seized, confiscated, 
forfeited, or appropriated by the rebel govern- 
ment, or any persons under its authority, shall be 
remunerated fully. These debts due to the North 
are estimated to amount to $200,000,000. The 
claims of northern men that are intended to be 
provided for by this bill will amount at the close 
of the war to not less than $600,000,000. Sup- 
pose the property of the rebels should be confis- 
cated to the United States, and sold as indemnity 
of the United States for its expenses. Their lands 
without their slaves would be of but little value. 
The great amount of their wealth consists of their 
slaves. These slaves amount to a little over three 
and a half millions, and before these troubles 
would have brought $2,100,000,000. That sum 
would be sufficient to indemnify the United States 
for probably all tlie expenses of the war. I care 
not, and my people care not, whether you put the 
forfeiture in the one form or in the other. With 
all the faults of my frank and gallant and err- 
ing State, a mercenary and a mean disposition is 
not to be charged against her. All that I desired 
in making this change was to avoid, if I could, 
the extreme objection that men had that the Uni- 
ted States Government should be concerned di- 
rectly or indirectly in the sale of slaves. I think 
I have achieved that by directing the forfeiture, 
not to the Government, but to the men injured by 
the war. Property is often forfeited by laws of 
Congress to injured men 

Mr. HOWARD. 1 would inquire of my hon- 
orable friend from Kentucky what benefit would 
that sort of indemnity be to the representatives 
of persons residing in the free States who have 
fallen or been damaged in this war.' How could 
they possess and enjoy a negro slave in a free 
State.' 

Mr. DAVIS. If my honorable friend will per- 
mit me to explain, my bill provides for that. It 
provides that there shall be a lienjin favor of every 
man injured in this war in the way I have ex- 
plained upon all the rebel property of any kind; 
and all that the representatives of a northern man 
who has fallen in battle would have to do, would 
be either to assign his claim — for the bill author- 
izes the assignment of the claim — or to send and 
have a suit instituted as under a common mort- 
gage, jiroceeding in rem, and to have so much of 
the property thus confiscated, of any description 



24 



whatever, sold as would satisfy the claim of the : 
individual. If confiscation can be executed in 
any form, this is the form in which it can be exe- 
cuted, and in whicii it is practicable. Whenever 
you give a man a private right and the means of 
asserting that private right, he is going to do it if 
the claim is of any consideration. 

I do not care about this matter of forfeiture 
particularly. I want the rebel leaders punished. 
Those that are impenitent and incorrigible, and 
continue to be so, I want punished. They cannot 
live in the same country with Union men. They ' 
must come back an^ submit to the laws and live 
as quiet citizens, or they must perish upon the gal- 
lows or go into exile. If you want to proselyte 
them and bring them back to the Government and 
induce them to drop their secession and disunion ' 
principles, in my opinion the way to do that most 
effectually is to offer them, on the one side, where 
they are notvery guilty, immunity, peace, and pro- 
tection, and on the other, the gallows or exile and 
the forfeiture of their whole estate. My State 
wants such a law as that. The Union people of 
my State want it. I am ready here to vote for it; 
but not to free their slaves, not to free any slaves, 
because Congress has no power to do that. I am 
for Congress passing — and I would be quite as 
severe and as unrelenting in my feelings and con- 
duct as most men — any law of punishment, of for- 
feiture of life or property, to fall upon the guilty, 
the egregiously guilty, and to spare the ignorant 
and deluded, and to offer them the hope of immu- 
nity and pardon. But, sir, I would want such a 
law as that passed with a condition. I would not 
want unconditional immunity offered to any man 
who had left his State to join the rebellion. I do 
not care what his degree of guiltiness was, I would 
want him pardoned only on the express condition 



that he should give up his treason, that he should 
come back, and submit himself quietly, orderly, 
as a good citizen, to the law, and whenever he 
showed a disposition to rise in rebellion against 
the law that he should still be subject to be prose- 
cuted for his original crime. We cannot havfe 
harmony, peace, and quiet upon any other condi- 
tions. 

Mr. President, I have now laid before the Sen- 
ate, very briefly, the main features cf the measure 
I have offered. 1 am only sorry it has not received 
more of the attention of members. It probably 
has received as much or more than it wes entitled 
to. But, sir, I want this war to be quick and pow- 
erful. Our armies are composed of the best ma- 
terial that ever were put in martial array.- The 
superiority of soldiership over generalship that 
has been shown in this war has been most strik- 
ing. The war itself would have been brought to 
a successful and triumphant close before this time, 
if we had had adequate talent and enterprise in 
our commanders. There is no doubt about it. 

But, sir, no state of the case will ever induce 
me or the Union men of my State to go into se- 
cessia. As Hamilcar brought his infant son Han- 
nibal to the family altar and made him swear eter- 
nal enmity to the Roman power, so 1 have sworn 
and will ever maintain eternal enmity to the prin- 
ciple. of secession and all its adherents. I want 
my country to put them down in the battle-field; 
and I want wise, just, and effective lav/s passed 
by Congress to bring about that great result. I 
am on the brink of the grave. Its crumbling edge 
is ready to receive me; but I have children and 
grandchildren, and I want my country restored 
to peace, and I want the segis of its Constitution 
and protection to be extended over my posterity 
and all my countrymen before I go hence. 



Printed at the office of the Congressional Globe. 



I 



